take such charge on condition that the daughter was permitted to remain with him until she was grown up and able to provide for herself. N. Boreham agreed to the condition, that he would in no manner interfere, and that he would pay Smith fourteen shillings per month for the child's support and education. Proviso, that he might visit his daughter at reasonable times. The mother died July, 1852. Smith, by virtue of the agreement, took possession of the daughter and took charge of and maintained her.

ERLE, J. "I have looked into the cases and it seems to me the arrangement between the father and the uncle is in the nature of a consent given by the father that the uncle should have the custody of the child, and a contract by the father to pay the uncle for its support. I am of opinion that the father is at liberty to revoke the consent, and I am bound to say that he is entitled, legally, to the custody of his child."

The report is too short to inform us what the court thought was the nature of the undertaking on the part of the uncle to maintain the child. The cases cited by counsel for the father were, as might be supposed, The King v. Mandeville, 5 East, 221; The King v. Greenhill, 4 Ad. & El., 624; and Ex parte Skinner, 9 J. B. Moore, 278, very strong and very hard cases. The American reports furnish two cases of a similar tenor.

In The State v. Clover, 1 Harr., 419, a child twelve years old, brought up on habeas corpus, was ordered to be delivered to the mother where the return of the defendants stated that the child was placed with them, with the mother's consent, to live and remain with them until of full age, and that she wished to remain.

And in Mayne v. Bredwin, 1 Halsted Ch. R., 454, the Supreme Court of New Jersey held that a father might recover possession of his infant child, although he had committed her to the care and custody of another until the child should attain the age of twentyone years, and in pursuance thereof the child had been adopted by such third person.

In the matter of Mitchell, R. M. Charl., 489, the court do not deny the power of the father to assign the custody of his child, but on the contrary intimate an opinion that he could lawfully do so upon a legal consideration. In that case the father sued out the writ of habeas corpus for his child, then three months old. The respondents were the grand-parents, at whose house the wife died in child-bed. It appeared that the applicant promised his wife, on her death bed, that the child should remain with her parents.

"This," said the court, "was without any legal consideration; and I cannot hold it to be an entire surrender of his legal or parental right. It might with great propriety be called nudum pactum."

On the other hand, in the case of The State v. Smith, 6 Greenl., 462, the court, in refusing to deliver the children into the custody of the father, laid stress upon the fact that he had agreed in a certain event, which had come to pass, that his wife should have the custody and control of their children.

The opinion of the Supreme Court of Massachusetts, in the case of Pool v. Gott and wife, 14 Law Rep., 269, breathes the true spirit, and is in unison with the general tone of our American authorities on the subject of parental custody where the controversy is between the parents.

The petitioner, Ebenezer Pool, was a merchant of Bangor, Maine, and sued out the writ of habeas corpus for the purpose of getting possession of his daughter, Lydia Gott Pool, aged thirteen years, in the custody of her grand-parents, the respondents. The other facts appear sufficiently in the opinion of the Chief Justice.

Chief Justice SHAW, in pronouncing judgment, remarked substantially as follows: "This case presents circumstances of interest and delicacy, involving both legal rights and the dearest feelings of parties. On the one hand is the legal right of the only parent, and on the other, the feelings of the child, and the feelings and rights, such as these rights may be, of the grand-parents. In either event the decision must cause pain and disappointment. I have carefully examined the pleadings and testimony, and find the facts to be but little controverted and to be substantially these: In 1837, Mr. Pool married the only daughter of Mr. and Mrs. Gott, who died the next year, upon the birth of this her only child. Under such circumstances the attachment of the grand-parents to the child was naturally strong, and as Mr. Pool had no home or wife, and was at that time in an embarrassed pecuniary condition, they took the child to their own home, with the father's consent. There is no evidence as to the nature of the agreement made, if indeed there was any agreement at that time; but the child has remained under the sole care of the grand-parents, to the present time, educated at their expense, the father neither offering nor being called upon for any contribution to its support. About ten years ago, Mr. Pool removed to Bangor, married again, has retrieved his affairs, has now a comfortable home, and a wife, and a family of three children, the fruit of this last marriage, of the ages of eight years and under. There was a period of three years when there was no intercourse between Mr. Pool and the grand-parents, but it appears that during the

last five or six years he has visited the child about once a year, more or less. He has however never made any demand, or given the child or its grand-parents any reason to suppose that he ever would demand the restoration of the child to his own care. On the contrary, I have no doubt that it was understood on all sides that the child was to remain under the respondents' charge and that they were to stand in loco parentis. The present demand grows out of a refusal by the child to make a vist of four weeks or so to the father, at his request, and a refusal of the grand-parents to part with her for that purpose.

"It is to be regretted that the law leaves cases of this description with so few rules for the government of the courts. This is perhaps unavoidable, on account of the illimitable variety of circumstances by which they are attended-circumstances that cannot be anticipated or provided for. There is no doubt that the father is prima facie entitled to the custody of his child. But this is not an absolute right. It may be controlled by other considerations. If unable or unfit to take charge of the child and educate it in a suitable manner, the court will not interfere to take the child from the care of persons who are fit and able to maintain and educate it properly. This is an exception, however, which need not be considered in this case; for the evidence shows that the father is in a good situation, pecuniary, domestic and social, and of a character and reputation against which no objection can be made. On the other hand, the respondents are persons of entire respectability, in independent pecuniary circumstances, and have so far educated, and will undoubtedly hereafter educate the child in a proper manner, and make her a suitable provision in case of their death.

"I have taken an opportunity to examine the child in private. I find her devotedly attached to her grand-parents, and am satisfied that a termination of this relation would be, for a long time at least, the cause of great suffering

to her and them. It cannot be supposed that, under the circumstances of the last six or eight years, and in the father's present situation, a failure to secure the custody of the child would be of as much consequence to him. It is suggested that the child has been prejudiced against the father, by the respondents, for the purpose of retaining her to themselves.

"I think there is a feeling on the part of the respondents, towards the father, which is unreasonable, though natural, and it has doubtless been communicated, to some extent, to the child, but I see no reason for supposing that the respondents have intentionally or culpably instilled prejudices into her mind for any sinister purpose. Making due allowance for this consideration, I am yet of opinion that it is clearly for the interest and happiness of the child to remain where she now is.

"It is a leading principle that when the right of the parent is not clear, the interest of the child will govern the decision of the court. Is then the right of the father clear in this case? Although there is no agreement proved, yet the conduct of the father, during nearly the whole life of the child, furnishes reason for supposing that he surrendered his rights over the child by a tacit understanding, if not by an express agreement. He has, for eight years or more, been able to retake the child, and has made no offer to do so. No demand or offer has been made on either side, that he should contribute to her support. His present assertion of his right is in consequence of what he deems an unreasonable refusal of a different request. By his own acquiescence, he has allowed the affections on both sides to become engaged in a manner he could not but have anticipated, and permitted a state of things to arise, which cannot be altered without risking the happiness and interest of his child. He has allowed the parties to go on for years in the belief that his legal rights were waived, and this relation of adoption sanctioned and approved by him. Under