Dissenting.. — I think that if a supersedeas if grantable at all has the effect merely to displace the order remanding the petitioner to the custody of the sheriff under the authority under which the latter originally held the petitioner, so that after the supersedeas is granted no proceeding can follow upon the original warrant, information or indictment until the supersedeas is removed.
The prisoner remains in such case in the custody of the Court under the writ of habeas corpus. If he has given a bond not to escape by the way, that bond remains in force. If he has given no such bond and does escape while the habeas corpus proceedings are pending the escape is not an escape from the sheriff and the latter is not -liable on his bond for negligent omission to safely keep his prisoner. Under the common law the court issuing a writ of habeas corpus could require the petitioner to give a bond not to escape by the way, that is during the habeas corpus investigation, so it is claimed, although if such proposition is true, it is easily conceivable that in’ some cases the petitioner’s right to a writ might depend upon his ability to' give a bond not to escape by the way. But whatever may be the eommon law upon' the subject a writ of error in habeas *156corpus proceedings was not allowable at the common law. The right exists in this State by virtue of a special statute authorizing it and that statute makes no provision for a supersedeas bond in such cases. Whence then is the authority for the Court’s order that a bond shall be given and the writ of error shall operate as a supersedeas? It does not exist.
The argument that the judge issuing the writ of habeas corpus may require the petitioner to enter into a bond for his appearance to answer the charge under which he is held by the sheriff rests upon 'the argument ad convenientum, but upon no authority existing either at common law or under a statute, because such a bond would be an appearance bond not a supersedeas bond, and the statute requires the condition of the appearance bond to fix the date upon which the defendant in the criminal proceedings shall appear to answer the charge against him, but a habeas corpus proceeding is civil in its character. The temptation for a court to make law in some cases may be strong but it is seldom if ever justified under our system of government.
In a habeas corpus proceeding where the Court has remanded the petitioner to the custody of the person holding him, and he takes a writ of error under our statute, he does it for the purpose of obtaining a release from the custody of the sheriff or person holding him because the only possible question presented is one of law, namely, the legality of his imprisonment not any question of fact as to guilt or innocence. If the Appellate Court holds that the order of remand was erroneous then the only other order to enter is discharge. So a writ of error in a habeas corpus case taken by the petitioner who has been remanded, is in effect nothing more nor less than an application for a writ of habeas corpus. If the petitioner is not in custody the writ *157will not issue. So if he is under bond for his appearance the writ will not issue. If, therefore, a supersedeas has the effect of releasing the petitioner from custody the reason for and purpose of the appeal or writ of error does not exist. It therefore follows that the discharge of the petitioner on a bond whether for a supersedeas or for his appearance, will operate as a dismissal of the writ of error because the question becomes a moot one.
West, J., concurs.