
    *DINAH PASCAL, plaintiff in error, v. HECTOR JONES, defendant in error.
    (Atlanta,
    June Term, 1870.)
    LEGITIMATE—NEGRO BORN BEFORE EMANCIPATION— WHAT WAS REGARDED AS WEDLOCK—ACKNOWLEDGMENT.—A colored child, born before emancipation, and whilst his parents lived in what was regarded a state of wedlock, who has been acknowledged by his father as his child, is the legitimate child, not only of his mother but of his father also, and the father has the rights of a parent over him.
    
      Negroes. Illegitimates. Habeas Corpus. Before Judge Clarlf. Dougherty County. Chambers, February, 1870.
    Said Dinah and Hector are negroes. They had been slaves, lived together as man and wife and had issue, a boy, now ten or eleven years old. After the birth of this boy they separated, and though belonging to the same master and living at the same place, they did not maintain the relationship of husband and wife at the date of emancipation 'from slavery. About the time of the surrender, of the Confederate armies, they lived near Columbus, Georgia, and without Dinah’s consent, Hector carried said boy tq Dougherty county. He kept exclusive possession of the boy till about Christmas of 1870, when he went into Dinah’s possession. Hector privately and violently took him away from Dinah. Since emancipation Hector has-taken another wife, and Dinah another husband, according to law.
    These facts appearing to the Ordinary of said county, on the hearing of an habeas corpus sued out by Dinah against Hector, to regain said boy, the Ordinary ordered the boy delivered to her upon the ground, that he was her illegitimate child. Hector’s counsel sued out a certiorari, before Judge Clark, and he reversed said decision. This is assigned as error.
    Vason & Davis, for plaintiff in error,
    said the boy was a bastard, and therefore the mother had a right to him: Code, (old) secs. 1738, 1669, 1748, 1750 ; 36th, Ga. R., 440; Acts, 1865, 240; Acts, 1866, 156.
    *D. H. Pope, by J. D. Pope, for defendant,
    replied that under sec. 1669 above cited, the boy was Hector’s legitimate child.
   By the Court—

McCAY, J.,

delivering the opinion.

Under the facts of this case, as they appear in the record, it is very clear that the child whose custody is in dispute is, under the Acts of 1865, and the Act of 1866, the legitimate child of Hector Jones.

He was born in what was considered at the time among slaves, wedlock, and he has been distinctly acknowledged and claimed by his father, Hector, since emancipation: Acts of 1865 and 1866, pamp., 239-240; Act of 1866, pamp., 157. We agree therefore with Judge Clark, that under the proof, he is the legitimate child of Hector Jones.

There is nothing in the facts to indicáte any special reason why Hector should not have the custody of the child. Both the parents stand unimpeached as to their industry and morality, the boy is ten or eleven years old, the mother has another husband, and we do not feel disposed to interfere with Judge Clark’s disposition of him. We affirm his judgment.  