
    The Commonwealth against Fee.
    
      Monday, October 23.
    The Court ^«Tchad between two and old to hr re^Jtodj°ofits mother,from* whom it had been forcibly a"gree ot?anU ficé, taken by^e|™ndia"
    A HABEAS CORPUS having issued at the instance of Charlotte Neal, commanding John Fee, sen., to produce the body of John Fee the third, together with the cause of his detention, he returned, that he detained him by virtue of an order of the Court of Common Pleas of Huntingdon county, a copy of the record of which was annexed to the return. *
    ' Toa habeas corpus issued by the Court of Common Pleas against the present defendant, he returned., that he was the grandfather of John Fee, the third, and that he had taken him on the 18th January, 1820, and since detained him, as his immediate relative, for the purpose of maintaining him. A hearing took place on the 7th February, 1820, when the child was remanded to the custody of his grandfather, who was directed by the Court to enter into a recognisance, with one surety, in the sum of five hundred dollars, for the maintenance and education of the child.
    On the hearing in this Court, it appeared, that John Fee, the third, who was at that time between two and three years old, was the natural son of Charlotte Neal, (formerly Young}, by John Fee, the second. Several witnesses testified to the fairness of Charlotte’s character, against which they had never heard any thing except the birth of this child. They stated, that the child was well clothed, and in other respects Well taken care of. It was proved, that some time in the preceding winter, John Fee, sen., the grandfather of the ' ■child, came in a sleigh with some other persons to the house in which the mother and child resided, which they entered under pretence of wanting to warm themselves. While there, he gave Charlotte five dollars towards the support of the child, and then suddenly snatched it- from the arms of the person who was holding it, put it into the sleigh and drove off.
    To counteract this testimony, the defendant gave evidence tending to shew, that Charlotte and her husband John Neal, were extremely poor, and that the child while it remained with them, was thinly clothed and badly fed; that its presence gave rise to disputes between Charlotte and her husband, in consequence of the visits paid by John Fee the second, to the house to see itthat Neal and his friends frequently expressed a wish that it might be taken away, and that since its removal to the house of its grandfather, whose circumstances were good, the child had been well provided for.
    Shippen, in behalf of the mother,
    insisted strongly upon the stratagem and force employed in getting possession of the child, and argued, that until the age of seven years, the rule was to suffer it to remain with the mother for nurture, unless it appeared to have been ill treated. 1 Bac. Ab, 520. Jacob's Law Diet. Dab. Corp. People v. Landt. 2 Johns. 275.
    
    
      W. R. Smith, for the defendant,
    answered, that both in England and in Pennsylvania, the Courts were governed in their decisions as to the custody of a bastard child by the particular circumstances of the case. Commonwealth v. Nutt, 1 Browne's Rep. 143. Rex v. Cronforth, 2 Str. 1162. That in the present instance, it appeared from the testimony of several witnesses, that the infant was badly fed and badly clothed ; that these circumstances had induced the Court of Common Pleas to place it in the custody of its grand-father, and should induce this Court to continue it under the protection of one who was able and willing to provide for it.
   Per Curiam.

Weg ive no opinion on the general question of the right of the putative father to the custody of his child. The case does not require it. It is the grandfather who has taken possession of this child. /Now there are two reasons why he should not be permitted to retain the possession. First, the tender age of the child, (a little more than two years) ; and, second, the manner in which the possession was acquired. Force was made use of, accompanied with some degree of artifice. This conduct is not to be encouraged. If the grandfather thinks himself entitled to the keeping of this child, let him have recourse to the law of the cduntry ; he must not be the judge in his own cause. Were this permitted, we should have a scene of endless confusion. It is, therefore, the order of the Court,’.that the infant, John Fee, the third, be restored to the custody of his mother, Charlotte Neal.  