#### *E. M. Hutson*vs. *W. S. Townsend.*

Bill by the maternal aunt against the father concerning the custody and control of an infant about thirteen years of age. The father resided out of the State, and the aunt had the possession of the infant. The commissioner ordered that the father be enjoined from any intermeddling with the infant, and from any measures to possess himself of his person until the further order of the Court. On motion of the father to dissolve the injunction, a Chancellor at Chambers ordered the aunt to deliver the oustody of the infant to the father, he giving security for the forthcoming of the infant to abide the decree of the Court: on appeal held, that such order was within the discretion of the Chancellor.

AYhere the custody of an infant is the subject of suit, the Court is fully justified in making *interim*arrangements for his custody.

And where no strong objection is proved or stated, the father, where he has never abandoned his right to the custody of the infant, is entitled, as natural custodian, to the possession of his person *pendente lite.*

*Before*Wardlaw, Ch., *at Chambers, Beaufort, October,*1853.

Wardlaw, Ch. The contestation of the parties in this case is concerning the custody and control of Wm. H. G. Townsend, an infant of about thirteen years of age.

Maria, wife of defendant, and sister of plaintiff, died in June, 1840, soon after giving birth to said infant. The child was left with his grand-mother, Martha Hutson, and his aunts, the plaintiff and Mary C. and Anne B. Hutson ; principally under the care and charge of the plaintiff: and the expenses of his nurture and education have been borne hitherto by these maternal relatives, or some of them, except that the hire of a nurse for one year was paid by defendant. The physical and moral needs of the child have been carefully and tenderly supplied; and the bill states, that the plaintiff and *“*her said sisters are in circumstances, and desire and intend, if permitted to do so, to complete his education, including a collegiate course, and a profession, if that should be his desire.” Martha Hutson died in October, 1851, leaving a will, by which she bequeathed one-fifth of her personal estate, after payment of her debts, to her grand-son, W. H. G. Townsend, on his attaining twenty-one *250years, for his life, and on his death, to his issue ; and upon his death without leaving issue then living, to her daughters, Esther, Mary, and Anne, with further limitations. The testatrix specially provides, that her said grand-son shall receive ho portion of the income of said bequest until he attain twenty-one years of age, and that all of said income shall be enjoyed by her said three daughters, and the survivors and survivor of them, until that epoch ; but that if all of them die before that event, her executors shall apply said income, from the death of the survivor until the grand-son be twenty-one years old, according to their discretion, for the education and support of said grand-son. By a codicil, dated October 15, 1849, said testatrix provided that if her said grand-son should die without leaving issue living at his death, or if such issue should all die in the lifetime of the said three daughters, the property given to the grand-son should then go to such of her said daughters as might then survive, with further limitations ; and she further authorized her executors to mortgage the whole, or any part of the interest of her grand-son under her will, for the borrowing of such funds as might be necessary, and to be, applied by said executors to defray the expenses of education of said grand-son, so long as he might be permitted to remain under the care and *control of*such of her said daughters as should continue unmarried; and to make sale of so much of the *corpus*of the property given to her grand-son, as might be necessary to satisfy the sum so borrowed ; or if the executors preferred to advance the funds necessary for the education of the grand-son, while permitted to remain with the daughters as aforesaid, giving them like power to sell the *corpus*of the bequest for their reimbursement.

■ The defendant, at the time of his marriage with Maria Hut-son, was a schoolmaster from the North, with small pecuniary means; after the death of his wife, he acquired the profession of a physician, and lived for some years in Georgia; afterwards he contracted a second marriage, with a widow.having a son by a former marriage, and removed to Chattanooga, in Tennessee, where he pursued, unsuccessfully, the business of a mer*251chant. He still resides there. The defendant denies, in his answer, that he is technically bankrupt or insolvent; but it is clear, from his own admissions and other evidence, that his affairs are embarrassed to insolvency.

A vague imputation is made in the bill, that the infant will be exposed to un'wholsome moral influences in the family of his father; and the suggestion is thrown out, that the character and conduct of his step-son, prove the defendant to be unfit for the guardianship of his son *W.*H. G. A charge made so indefinitely, and unsupported by any proof, may be summarily dismissed.

Upon bill filed, the Commissioner in Equity for Béaufort district ordered that defendant be enjoined from any intermeddling with the infant, and from any measures to possess himself of the person of the infant, until the further order of the Court. It seems the bill was filed, while the defendant mas preparing to obtain possession of his child by process of *habeas corpus*in the law Court. The answer of the defendant insists strongly upon his rights as father, to the custody of his child, and the direction of his education; denying, or explaining the circumstances adverse to his rights at common law. In this state of things, application is made to me at Chambers, on the part of the defendant, to rescind the order of the Commissioner'; and on the part of the plaintiff, to make some modification of the order. In general, the father is entitled to the custody of his child, even against the mother, and although it may require nourishment from the mother’s breast; and this mainly results from his primary liability for the maintenance of his children. A Court of Equity, by virtue of its delegated power as *parens patrice,*may remove the guardianship of children from a father, upon clear proof that he is of grossly immoral character, and voluntarily exposes his children to demoralizing influences. So, also, I suppose, this Court might interfere, to prevent delivery of a ward of the Court to a father, especially if he were about to remove the ward beyond the jurisdiction of the Court, where such delivery would involve considerable pecuniary loss to the *252infant. Upon the pleadings, and the affidavits presented to me-in this case, I am not satisfied that any thing appears to limit the father’s right to the custody of his child, and I am restrained from granting the defendant’s motion only by the consideration, that this might amount, under the circumstances, to a final determination of the case : whereas, it is possible, that at a full hearing, the plaintiff may entitle herself to some relief. I will provide some security for a fair and full trial.

It is obvious that the bill is defective in its frame. It does not make parties to the suit the infant, nor the sisters of the plaintiff, who seem to have equal right with herself. It contains no distinct averment of any fact leading to the conclusion, that the infant, under the care of the father, will be exposed to demoralizing influences. It contains no binding obligation, or promise, on the part of the plaintiff or her sisters, to add to the pecuniary means of the infant, if he be left under their care and nurture.

It is ordered, that the plaintiff deliver to the defendant the custody of the infant, W. H. G. Townsend, upon the defendant’s executing a bond to the Commissioner with one good surety, in the penalty of one thousand dollars, conditioned to have the said infant forthcoming to abide the further order ox-decree of the Court; or his depositing five hundred dollars in cash with said Commissioner, to be held upon the same condition. It is further ordered, that the order of the Commissioner of April 7,1853, be modified accordingly. It is further ordered, that the plaintiff have leave to amend her bill, as she may be advised.

The plaintiff appealed on the grounds :

1. Because, under the pleadings, no order could properly be made, to transfer the custody of the infant to the defendant. According to the practice of this Court, the injunction should have been retained or dissolved — though conditions could have been annexed, in either case.

2. Because the answer admits the infant was in good hands; *253and it is apparent, no injury would result from his remaining there until February, therefore the injunction should have been retained.

3. Because the security proposed is utterly inadequate to retain the jurisdiction.

4. Because the order considers (in part) the merits, on which no evidence was heard.

5. Because the complainant made no motion to modify, as stated in the order. Her motion was for injunction, *(de novo,)*if the Chancellor decided the Commissioner’s order to be defective for form.

6. Because the order does not recognize the old and well settled equity rule, adopted recently even in the Law Court, that *“*it is the benefit and welfare of the infant to which the attention of the Court ought principally to be directed.”

*7.*Because in an application for guardianship, the infant ought not to be a party, if under 14.

8. Because the order is in other respects contrary to law and equity.

*Hutson,*for appellant.

*DeTreville,*contra.

The opinion of the Court was delivered by

Wardlaw, Ch.

The order of the Chancellor in this case, is upon a matter within his judicial discretion, and confessedly not the subject of appeal, unless he has violated the procedure of the Court in doing more than sustaining or dissolving the injunction granted by the Commissioner. The principal ground of appeal is, that the Chancellor directed the transfer of the custody of the infant pending the suit from the plaintiff, his aunt, to the defendant, his father. This is a mere provisional direction, not concluding the ultimate right of the parties, and guarded against such conclusion of right by security which the Chancellor, in his discretion, thought sufficient. It is the familiar practice of the Court to preserve by adequate security, the *254subject of litigation during a suit. *Ellis*vs. Commander, 1 Strob. Eq. 188. And here where the custody of an infant is the subject of suit, the Court is fully justified in making *interim*arrangements for his custody. We desire to avoid, as the Chancellor manifestly avoided, any pre-judgment-of the merits of the case; and this restrains us from full discussion. But it is proper to state, that when the order was made, the natural right of the father to the custody of his child did not appear to be infringed by misconduct on his part, or by consequential injury to the interests of the child. What is spoken of as a transfer of custody is simply restoring to the father until further order that practical control of his child, which for a time he had exercised vicariously, but without any abandonment of right. As the natural custodian, he was entitled to keep the subject *pendente lite,*where no very strong objection was proved, or even stated. We perceive no reason to be dissatisfied with this exercise of the Chancellor’s discretion.

It is ordered and decreed that the appeal be dismissed.

Johnston and Dunkin, CC., concurred.

Dargan, Ch., absent at the hearing.

*Appeal dismissed.*