
    7425
    
      EX PARTE AVANT.
    Imprisohmeut — Appeal.'—A solicitor has no authority to order the sheriff to arrest a defendant' and deliver him to the State penitentiary who has been released on bond after sentence by order of a Circuit Judge, reciting that the defendant had served notice of appeal.
    Proceeding in habeas corpus by William B. Avant, for release from custody of State Penitentiary, before Mr. Justice Gary.
    
      Messrs. I. W. Ragsdale and Walter Hazard, for petitioner.
    
      Solicitor W. H. Wells, contra.
    February 2, 1910.
   This is a proceeding in habeas corpus for the discharge of the petitioner from alleged illegal confinement in the State Penitentiary, under an order from Hon. Walter H. Wells, solicitor of the Twelfth Circuit,based upon the ground that no notice in writing was served within the time required by law (ten days), signifying the intention of the defendant to appeal from the sentence imposed upon him by his Honor, Judge Watts, that he be confined in the State Penitentiary for a period of three years.

The question in this proceeding is not whether the appeal was properly taken (Ex parte Hutto, 78 S. C., 560, 60 S. E., 34), but whether the solicitor could make an order directing the sheriff to rearrest the defendant and deliver him to the authorities of the State Penitentiary after the defendant had given bond under an order of his Honor, Judge W'atts, in which it is recited that the defendant had served notice of appeal.

The order of his Honor, at most, was only voidable and not void, and could not be disregarded or set aside except in a proper proceeding for that purpose.

As the order of the solicitor, directing the sheriff to arrest the defendant and deliver him to- the authorities of the State Penitentiary, was without authority of law, the defendant is entitled to be discharged from his present confinement, upon entering into a recognizance in the sum of three thous- and dollars, with two or more good and sufficient sureties, conditioned to abide the result of his alleged appeal; and it is so ordered.  