The petitioner, Geo. W. McNaught, on October 11, 1909, filed in this court an application for a writ of habeas corpus, wherein it is averred that he- is unlawfully' restrained of his liberty by E. W. Dick, warden of the state penitentiary, at and in said penitentiary at McAlester, Okla. Counsel for petitioner, in view of the fact that an appeal has been taken by said petitioner from the judgment and sentence under which he is now held, consent that this cause be dismissed. The application is therefore denied, and said cause is hereby dismissed.