
    Commonwealth versus Joseph Hammond.
    Where a female child, between eleven and twelve years of age, whose father was dead, was committed by her mother to the respondent, a member of a society of shakers, on a verbal contract for her support and education, and afterwards a guardian was appointed who claimed the custody of the child, and obtained a writ of habeas corpus directed to the respondent, the Court refused to determine, in this summary process, upon the rights of the mother and of the guardian, and ordered that the child might remain with the respondent or go at large, at her election.
    Upon the application of Ephraim Tufts, whom the judge of probate of the county of Suffolk had appointed guardian of Margaret F. Holst, a minor, a writ of habeas corpus was issued to Hammond, a member of the society of shakers at Harvard, commanding him to bring the minor into court. Hammond made a return upon the writ, that the minor was a legitimate child, of the age of eleven years and a half; that her father was deceased ; that before the letters of guardianship were granted to Tufts, the mother of the child (being then and still a widow) had committed her to the respondent, on a verbal contract for her support and education until she should arrive at twenty-one years of age, during which period she was to render to the respondent reasonable services ; and that she had not been at any time imprisoned or in any manner unreasonably restrained or deprived of her liberty.
    It was conceded that the child had not been ill-treated, and that she was desirous of remaining with the respondent.
    
      W. T. Andrews contended that the making of the contract was an abuse of the power of a guardian by nature ; that the judge of probate had authority to appoint a guardian to the child, and that such guardian was entitled to the custody of the person of his ward. 1 Bl. Comm. 462, 463 ; Holyoke v. Has-kins, 5 Pick. 20.
    
      Oct. 20th.
    
    
      Hoar, for the respondent,
    cited Rex v. Johnson, 8 Mod. 214 ; Rex v. Clarkson, 1 Str. 444 ; Rex v. Delaval, 3 Burr. 1434 ; Ex parte Hopkins, 8 P. Wms. 152 ; Matter of Wollstonecraft, 4 Johns. Ch. R. 80.
   Per Curiam.

We do not think proper to decide upon the relative rights of tire mother and the guardian in respect to the custody of the child, as they are only incidentally drawn in question The application is to the discretion of the Court, and the Court will not interfere where the liberty of the party is not injuriously or unwarrantably infringed. That is not the case in the present instance ; and the order of the Court therefore is, that the child be at liberty to remain in the charge of the respondent, or to go at large, as she may elect.  