OPINION OF THE COURT BY

This is a motion by one Ching Tai, by his attorneys, E. W. Breckons and Wade Warren Thayer, setting forth that he is a prisoner in Oahu Penitentiary; that October 19, 1907, he applied to the circuit court of the first circuit at chambers for release from custody by writ of habeas corpus; that October 31. the court denied his application and that he has perfected his appeal to this court and moves to be admitted to bail pending the appeal. The petition for the writ avers that the petitioner was restrained by the high sheriff at Oahu Jail under a mitti-mus, a copy of which is attached, issued out of the first circuit court by the third judge thereof January 26, 1907, to the high sheriff, reciting that Ching Tai, having been convicted in the circuit court of the first circuit of the offense of being present at a place where gambling games were carried on and sentenced to six months imprisonment and $2.50 costs and directing that officer to take said Ching Tai into his custody “and to cause said sentence to be executed.” The petition further avers that *474the petitioner excepted to the judgment and that having l-xc-cutc-d a bail bond for appearance before the supreme court when required he was released from custody by the high sheriff; that the bond is still in foi;ce no proceedings having beenjaken for its forfeiture; that the petitioner has abided by its requirements, but that October 17 the high sheriff unwarrantably, illegally and without right of process took him into custody and restrained him of his liberty.

The high sheriff’s return, he producing the person as required _ by the writ, shows that said Chiug Tai was in his official custody, being imprisoned in Oahu Jail by virtue of the judgment upon which the mittimus referred to was issued ; that its execution was stayed pending the decision on the exceptions to the judgment, and that October 7, 1907, the petitioner, through his counsel Mr. R. W. Breckons, voluntarily abandoned his exceptions and October 17 a decision was rendered by the supreme, court dismissing them, notice of the decision being the same day filed with the clerk of the circuit court.

The circuit judge, after hearing the case upon the petition and return, denied the petitioner’s application to he released from custody.

'Plie petitioner does not ask to be heard on the. petition — lie. does not wish it to he disposed of now — but merely that his motion for hail he granted, claiming in argument that he ought not to he held under the mittimus as it does not appear that an order was made by the, circuit court in which he was convicted directing the officer, by reason of the dismissal of 1he exceptions, to arrest him and execute the judgment as required by the mit-timus.

This is not a ease under Sec. 2774 R. 1,., continuing the. right of hail after conviction, since no proceeding is ponding to secure, a review of any action of the court in which the petitioner was arraigned, tried, convicted or sentenced.

Under Sec. 2079 Tb., “Until judgment is given, the court, or judge may remand a party, or accept bail for bis appearance from day to day, or may place him under special care and cus*475tody, as circumstances may require.” Under this section .the granting of hail is discretionary and while it is not desirable to consider the merits of the case in advance of argument, the court in giving its judgment, after looking at the record which has been made part of the motion, under all the circumstances, denies the motion.