executor, how affected by statute of limitations: See note to Moore v. Armstrong, 36 Id. 68.

EXECUTOR OR ADMINISTRATOR CANNOT SET UP STATUTE OF LIMITATIONS as against heirs or representatives of deceased: See note to Miles v. Thorne, 99 Am. Dec. 394.

MILLER V. WALLACE.

[76 GEORGIA, 479.]

FATHER HAS RIGHT TO CONTROL OF HIS MINOR CHILD, and this right can be given up or forfeited only in a manner prescribed by law, as where the father fails or is unable to provide for the support of his child, or abandons or cruelly treats it, or by his immoral character renders himself unfit for the rearing of such child: Code, secs. 1733, 1793, 1794, 1795. CUSTODY OF CHILD, AWARDING OF, IN DISCRETION OF COURT. Where a writ of habeas corpus is sued out to obtain the control of a child, it is in the discretion of the court, upon the evidence produced, to award the custody of such child to any proper party, or even to a third person: Code, sec. 4024.

DISCRETION OF COURT RESPECTING CUSTODY OF CHILD is a legal discretion which should be guarded by the principles of law, and not by the notions and fancies of the court.

FATHER IS PRIMA FACIE ENTITLED TO CONTROL OF HIS MINOR CHILD, and before this right can be taken away the sanctity of the paternal relation demands that the reasons for so doing be obvious and satisfactory, and be established beyond doubt.

FATHER MAY, BY CONTRACT, RELEASE HIS RIGHT TO CUSTODY OF HIS CHILD; but the terms of such contract, to be effective, must be shown to be clear, distinct, and definite.

PRECAUTION TAKEN BY FATHER OBTAINING POSSESSION OF HIS CHILD by stratagem, for the purpose of evading an unpleasant controversy, especially when followed by a letter of explanation to his mother-in-law, from whom he had taken his child, should not be so construed as to make it appear that he conceded that he was unlawfully exercising a power that he knew was not his.

FATHER MUST SUPPORT HIS MINOR CHILD; and where he is in a better position to do so than is the grandmother of such child, who is in destitute circumstances, the court will not take such child from him and award it to her.

EXERCISE BY Court of Legal DISCRETION may be reviewed and reversed on appeal.

PETITION for writ of habeas corpus by William and Caroline Wallace to procure from James T. Miller the custody of his child, four years of age, which, upon the death of its mother, had been by its father intrusted to its grandmother. Miller contributed to the support of the child, and finally took it from its grandmother, and placed it in his family with his

mother and sister. The presiding judge awarded custody of the child to petitioners, from which defendant appealed.

King and Spaulding, for the plaintiff in error.
Hillyer and Brother, for the defendant.

By Court, HALL, J. The question in this case 18, whether, under the facts in evidence, the judge abused his discretion in taking the minor child, Etta Wallace Miller, from the custody of her father, James T. Miller, who was the respondent in this habeas corpus proceeding, and ordering her to be remanded and delivered, and to remain in custody of petitioners for the writ, William and Caroline Wallace, her maternal grandfather and grandmother. The solution of this question turns upon the point whether the father, by a voluntary contract, released his legal and parental right to the control of his child to these petitioners, or either of them, or whether he consented to her adoption by them, or either of them; for it is not pretended that he forfeited his right to her custody and control, either by a failure or inability to provide necessaries for her, or by abandoning her, or by cruel treatment, or that, by reason of his bad character and immoral habits, he could not be trusted with her rearing and education without detriment to her well-being. The defendant and his wife (the father and mother of the infant) lived together in harmony until the death of the mother. There appears to have been no domestic infelicity or jars between them. There was nothing, in short, as long as they lived, that could by any possibility afford a ground of contest as to the control or custody of their infant child by either to the exclusion of the other; neither was there anything tending to show that the dead wife, in her lifetime, distrusted her husband's capacity or fitness to have control of the rearing and education of their child, or evincing a desire on her part to see him deprived of his power and authority in this respect.

1. It is indisputable that the father, under the law, has the control of his minor child, and that this can be relinquished or forfeited only in one of the modes recognized by law, including those above specified, with some others not applicable to the present status of this case: Code, secs. 1733, 1793, 1794, 1795.

2. It is equally clear that in all writs of habeas corpus sued out on account of the detention of a child, the court, on hearing all the facts, may exercise its discretion as to whom the

AM. ST. REP., VOL. II.-4

custody of such child shall be given, and shall have power to give such custody of a child to a third person: Code, sec. 4024. The discretion to be exercised in such case is not an arbitrary and unlimited discretion like that confided to the Roman pretors; but, as remarked by Lord Mansfield in Rex v. Wilkes, 4 Burr. 25, 37, is such a "discretion as, when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humor; it must not be arbitrary, vague, and fanciful, but legal and regular." In Rooke's Case, 5 Coke, 99 b, it is said: "And notwithstanding the words of the commission give authority to the commissioners to do according to their discretions, yet their proceeding ought to be limited, and bound with the rule of reason and law. For discretion is a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colorable glosses and pretenses, and not to do according to their wills and private affections; for, as one saith, talis discretio discretionem confundit." As is stated by Lord Coke, 4 Inst. 41: "Discretio est discerenere per legem quid sit justum"; and by Sir Joseph Jekyll, M. R., in Cowper v. Earl Cowper, 2 P. Wms. 753: "Though proceedings in equity are said to be secundum discretionem boni viri, yet when it is asked, Vir bonus est quis? the answer is, Qui consulta patrum qui leges juraque servat; and as it is said in Rooke's Case, 5 Coke, 99 b, that discretion is a science not to act arbitrarily according to men's wills and private affections, so the discretion here is to be governed by rules of law and equity, which are not to oppose but each in its turn to be subservient to the other. This discretion in some cases follows the law implicitly, in others assists it, and advances the remedy; in others again it relieves against the abuse, or allays the vigor of it; but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this court. That is a discretionary power which neither this nor any other court, not even the highest, acting in a judicial capacity, is by the constitution intrusted with."

Dr. Broom in his Legal Maxims, 84 et seq., in treating of the kind of discretion intrusted to courts and judges, pointedly and aptly remarks: "It is held the duty of the judge, in a land jealous of its liberties, to give effect to the expressed sense or words of the law, in the order in which they are found in the act, and according to their fair and ordinary

import and understanding; for it must be remembered that the judges are appointed to administer, not to make, the law, and that the jurisdiction with which they are intrusted has been defined and marked out by the common law or acts of Parliament. It is, moreover, a principle consonant to the spirit of our constitution, and which may be traced as pervading the whole body of our jurisprudence, that optima est lex quæ minimum relinquit arbitrio judicis, optimus judex qui minimum sibi: that system of law is best which confides as little as possible to the discretion of the judge; that judge the best who relies as little as possible on his own opinion." And he emphasizes and enforces this view by adopting and declaring, in the language of Maule, J., that "there is no court in England which is intrusted with the power of administering justice without restraint. That restraint has been imposed from the earliest times. And although instances are constantly occurring where the court might profitably be employed in doing simple justice between the parties, unrestrained by precedent or any technical rule, the law has wisely considered it inconvenient to confer such power upon those whose duty it is to preside in courts of justice. The proceedings of all courts must take a defined course, and be administered according to a certain uniform system of law, which in the general result is more satisfactory than if a more arbitrary jurisdiction was given to them. Such restrictions have prevailed in all civilized countries, and it is probably more advantageous that it should be so, though at the expense of some occasional injustice": Freeman v. Tranah, 12 Com. B. 413, 414; 74 Eng. Com. L. 406. The citations in the foot-notes of Broom, at the pages quoted, furnish many other instances of the practical and indispensable application of these principles.

The rule of discretion as applicable to habeas corpus cases did not originate with the compilers of our code; they took it from the common law, and in adopting it, they adopted also the meaning and limitations placed upon it by the venerable sages and authorized expounders of that noble system. Under the "discretion" vested in him, no judge has authority to disregard or even to impair any acknowledged or established right of a party by its exercise, and if he does so, it would seem to follow as a necessary consequence that he abuses that discretion. As was well remarked by the court in In the Matter of Mitchell, R. M. Charlt. 493, "the power ought to be excercised in favor of the party having the legal right, unless the

circumstances of the case, and the precedents established, would justify it, acting for the welfare of the child, in refusing its aid." Again (Id. 495) it is said that "the court will draw no inference to the disadvantage of the father, but will act from positive proof." The authority of this case has been expressly recognized by this court in Boyd v. Glass, 34 Ga. 258; 89 Am. Dec. 252. It is a well-considered and ably argued case, is in point with the present case, and decides every question made by it, is sustained by copious references to such authorities, both English and American, as existed at the time it was made, 1836, and by subsequent text-writers and adjudicators.

Prima facie, the right of custody of an infant is in the father, and when this right is resisted, upon the ground of his unfitness for the trust, or other cause, a proper regard to the sanctity of the parental relation will require that the objec- ; tion be sustained by clear and satisfactory proofs. "A clear and strong case " must be made to sustain an objection to the father's right: Commonwealth v. Briggs, 16 Pick. 205. This was determined in a contest on habeas corpus between the mother and father who had separated. The discretion to be exercised by the courts in such contests is not arbitrary. The rights of the father on the one hand, and the permanent interest and welfare of the infant on the other, are both to be regarded, but the right of the father is paramount, and should not be disregarded, except for grave cause. The breaking of the tie that binds them to each other can never be justified without the most solid and substantial reasons established by plain proof. In any form of proceeding, the sundering of such ties should always be approached by courts "with great caution and with a deep sense of responsibility": State v. Richardson, 40 N. H. 274, 275. Taylor v. Jeter, 33 Ga. 195, 203, 81 Am. Dec. 202, is fully in point. Jenkins, J., speaking for the court, there declares that the ground of objection to the right of the father should have "been distinctly alleged," and that "there should have been direct sau actory proof adduced to sustain it." Where it is insisted that the father has relinquished his right to the custody of his child to a third person by contract, which he might undoubtedly have done, yet the terms of the contract, to have the effect of depriving him of its control, should have been "clear, definite, and certain": Drumb v. Keen, 47 Iowa, 435, 437.

Tested by these rules, this case seems to fall far short of