(dissenting)—I think the application should be granted. While I concede that the majority correctly state the rule laid down in the ease of In re Foye, 21 Wash. 250, 57 Pac. 825, I am convinced that that case is wrong in holding that neither supersedeas nor bail can be granted on an appeal from an order of the superior court denying an application for a writ of habeas corpus. The conclusion, it seems to me, is inconsistent with another part of the same opinion in which it is held that an appeal will lie from such an order, and inconsistent with the principle of the many subsequent cases in which we have not only held that such appeals will lie, but have held that a habeas corpus proceeding is a civil and not a criminal proceeding and is governed by the civil practice act relating to the giving of bonds made necessary by that act in order to perfect such an appeal.
I also think the rule wrong for another reason. As is well known, the order denying the writ remands the fugitive to the officer whom the warrant of the governor authorizes to receive him, who is thereby permitted to forthwith remove the fugitive from the state. To deny the supersedeas is, in effect, to deny the appeal, since the officer may, by the removal pending the appeal, render the appeal nugatory.
It may be that my brothers think some other remedy is more appropriate to prevent removal than is the remedy here sought; but, if this be the thought, I answer, first, that the civil practice act in terms provides for the remedy, and if it is applicable in part, it ought to be applicable in whole ;■ and second, that forms ought not to be held to govern, and if any remedy is appropriate, this application should be treated as an application for that remedy.