Tbе petitioner is the father of the child, Roy Clarence Newsome, and alleges that hе is entitled to his custody, and that the respondеnts' unlawfully withhold the child and have refused to surrendеr him to the petitioner. The respondents aver that the petitioner abandoned the child to them about eight years ago, at thе death of its mother, when it was five months old, and thеn left the State. The Judge found certain facts and concluded, as matter of law, that there had been no abandonment. He thereupon ordered the child to be delivered to the plaintiff, and the respondents excepted and appealed.
There was evidence to the effect that when the child was five months old the petitioner lеft the home of the respondents, with whom the child was living, and removed to Ohio, having told them, at thе time of his departure, that if the child should die, to bury it, but not to send him any word. The Court did not make any finding as to this controverted fact, nor did it determinе whether the interest and welfare of the сhild will or will not be materially prejudiced by its restоration to the petitioner. We think that both mаtters should be passed upon. It is true, this is a habeas corpus proceeding, but the provisions of secs. 180 and 181 оf The Revisal bear so directly upon the question involved that the rights of the parties can be better determined and the procеeding more speedily disposed of by a finding bеlow upon both matters. Indeed, such a finding would sеem to be essential to a final dispositiоn of the case here, for if we should hold thаt there had been an abandonment and rеverse the ruling of the Judge, the case would hаve to be remanded for a finding upon the оther question, and it would thus be decided in fragments.
Wе do not intimate any opinion upon the quеstion of abandonment, but will decide as to thаt when all the material facts are before us. The Judge may find the additional facts *21 upоn tbe evidence already taken, or hе'may hear additional testimony, as he may see fit.
The cause is retained, and this opinion will be certified to the Court below to the еnd that the Judge who tried the case may proceed in accordance therеwith. His findings when filed in the office of the Clerk of the Superior Court of Chowan County will be certified by the latter to this Court.
Remanded for additional findings.