Appellant sued out a writ of habeas corpus in the court below, and upon a hearing thereof was remanded to custody, and appeals.

The record fails to show affirmatively that he is in confinement pending said appeal, and it is suggested to this court that he has not been in confinement pending said appeal, but that when the appeal was taken he deposited a sum of money with the clerk in lieu of going to jail. Where a party resorts to the writ of habeas corpus, and is remanded to •custody, upon the hearing he must be placed in confinement in order for the jurisdiction of this court to attach to his appeal. He can not enter into a recognizance or deposit a sum of money for his appearance .to abide the judgment of this court. He must be in custody, so that the mandate of this court will be operative-upon him when issued. See Ex Parte Erwin, 7 Texas Crim. App., 288; Ex Parte Cole, 14 Texas Crim. App., 579. The writ of habeas corpus can not apply or attach or be resorted to except when the party to be affected by it is in illegal restraint. The motion of the Assistant Attorney-General to dismiss this appeal is sustained, and the appeal is therefore dismissed.

Dismissed.