49 Miss. 393 | Miss. | 1873
delivered the opinion of the court;
Habeas corpus before the chancery court of JDeSoto county by Yiolet Maples, for the possession of her minor son, Boss Maples. The petition represents that Yiolet is a resident of the State of Alabama, and that she is the mother of Boss, who, at the date of the petition, was aged about' fifteen years; that in December, 1872, Boss left her home and custody, as she believes, induced by Ambrick Maples, in whose custody, in DeSoto county, he now is; that Arm-brick refuses to give up the possession of said Boss to petitioner ; that she believes that, unless Boss is ordered into custody, he will be removed or concealed by Ambrick Maples, .and prays for an order delivering her son into her possession. The petitioner, Yiolet Maples, is, in fact, now in the State of Alabama, and this writ is prosecuted in her name by her agent; the petition being signed, “ Yiolet Maples, per John W. Bridgforth, agent,” and is sworn to by the agent.
Ambrick Maples demurred to the petition, stating for cause : 1. That the petition does not allege that respondent restrains said boy of his liberty; and, 2. That the petition shows that said boy is fifteen years of age, and is of sufficient age to elect with whom he will stay.
The demurrer Was overruled, and the respondent answered that he is- the father of Violet Maples, and grand father of Boss; that Boss Was eighteen years old m June, 1872; he denies that the boy was induced to leave his mother by respondent; denies that the boy is in his Custody, or that he has been during the year; denies that the boy is in any way restrained of his liberty; that the boy has stayed with him as with any relative;. and, from what he has heard the boy say, he will not return to Alabama unless confined and forced to go.
The decree was rendered February 6, 1873, and directed the body of the boy, Boss Maples, to be delivered to his mother, or her agent; that the costs of this suit be paid by
The case at bar seems to be this:
1. The Code, § 1396, provides, that “ the Writ of habeas corpus shall extend to all cases of illegal eonfine'mznt or detention whatever, by which any person is deprived of his liberty, or in which the rightful custody of any person is withheld from the person entitled thereto.” By § 1400, the petition for the writ shall be in writing, under oath, and shall describe by whom the party is deprived of his liberty,- and the circumstances of the restraint.
In this case the petition is in writing, sworn to by an agent of Violet Maples, and states, “ that her said son, Boss Maples, is now in the custody of said Ambrick Maples, on the plantation of R. J. Jeffries, near Horn Lake, DeSoto county, Mississippi, and that said Ambrick Maples absolutely refuses to give up the possession of said Boss to your petitioner.” Whether the petition uses equivalent words for an “ illegal confinement or detention,” or “ deprivation of liberty,” employed by the statute, need not, in view of the conclusion upon the whole record, be now7 determined.
2. The testimony seems most conclusively to negative the allegation of confinement, detention, deprivation of liberty, or even constraint.
8. Violet Maples is the mother of seven children, by different fathers. She is the servant of, and lives in the kitchen of the father-in-law of her agent, who prosecuted this case in the chancery court, and is a resident of the State of Alabama. She has no other ostensible business than that of cook, nor other means of supporting her children. Her position, employment, and character, offer no guaranty of the proper care and training of her son Boss. He is evidently wanted'by her to be hired out to other parties.
4. Ambrick Maples, the grandfather, is apparently a respectable farmer, in comfortable circumstances, with the inclination to afford Boss a decent home, and some education.
Conceding to the Chancellor a large discretion in cases of this sort, the impression is very decided, that he erred in this instance. The doctrine is based upon reason and philosophy, that the welfare of the child will be consulted. No inducement is perceived for the return of this boy, at his age; to his mother. And besides, to send a boy of nearly full age, out of the State by force, when no good can result, is somewhat obnoxious. From the evidence it is better for the boy where he is, than with his mother, who has no home to take him to. This case is one, where, to use a common expression, it would be better to let'well enough alone.”
Without further elucidation, and with a reference merely to the authorities on the subject involved, the decree of the Chancellor will be reversed and the petition dismissed. Code, §§ 1396, 1793; Foster v. Simmoms, 6 How., 406; Cocke v. Hannum, 39 Miss., 423; Shelford, Mar. & Div., 677, 678; Rex v. Delavel, 3 Burr., 1436; 13 John., 418; 4 John, ch., 80; 31 Eng., C. L., 661; Hurd on Habeas Corpus, 454, et seq.; ib., 462; ib., 521; ib., 527; ib., 532; 2 Kent, 194; etc.
Ordered' accordingly.
