DOWDELL, J.
The appellee filed a petition to the judge of probate for a writ of habeas corpus upon the ground that her child, ten years old, was illegally held by the appellant. On this petition a hearing was had before the judge, and upon such hearing a judgment was *517rendered according the custody of the child to the petitioner, and further adjudging the costs against the appellant, and from this judgment or order the present appeal Avas taken. The judgment or order Aims such, from which, either party under the statute might prosecute an appeal. — Code 1896, § 457, (same as § 3640, Cede 1886; Shows v. Pendry, 93 Ala. 248. This proceeding, the party'restrained not being held under any criminal charge, • is in its nature a civil proceding. The party appealing is under the statute, (§ 439 of the Code, 1896), required to give security for costs, and failing to do so, the appeal cannot be sustained. No security for costs of appeal Avas given- in this case, and it follows that the appeal must be dismissed.
Appeal dismissed.
McCbellaN, C. J., HaralroN and Dewson, JJ., concurring.