APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF ARIZONA.
MR. JUSTICE DAY delivered the opinion of the court.
The suit below was begun by a petition for a writ of habeas corpus, by the New York Foundling Hospital, a corporation of the State of New York, against John C. Gatti, to command
said Gatti to produce the body of one William Norton, an infant, and to show by what right he held such infant under his custody and control.
The petitioner set out in substance that, by its charter granted by the legislature of New York, it was authorized to receive and keep under its charge, custody and control children of the age of two years or under, found in the city of New York, Abandoned or deserted, and left in the crib or other receptacle of petitioner for foundlings, and to keep such children during infancy; that the child William Norton had come to it as a foundling within the terms of its charter; that the petitioner, the fourth of October, 1901, to October 2, 1904, had the care, charge, custody and management of said child; that on or about the first of October, 1904, petitioner placed the child in the home of a certain person in the town of Clifton, county of Graham, Territory of Arizona, to be held and cared for by the said person in said hom temporarily, and at all times subject to the supervision of the petitioner and its officers and agents; that at such time the petitioner had officers and agents of trained experience at the town of Clifton, with insructions to supervise said child and the care and management of it while temporarily in the charge and care of the said person as aforesaid; that at all times the petitioner had the right at will to withdraw the child from the care and charge of the said person and retain the custody thereof, and continue to keep the said child in pursuance of law under its care, charge, custody and management during the term of its infancy as aforesaid.
Upon information and belief it charges that thereafter, and on or about the second day of October, 1904, one John C. Gatti, residing at the said town of Clifton, his servants and employes, unlawfully and with force and violence entered into the house of the said person, where at the time of said unlawful entrance the said child William Norton was, having been placed there as aforesaid, and forcibly, unlawfully, and without right took possession of said William Norton and removed him thence to
the custody of the said John Gatti. That the said child has ever since said day been in the custody and under the control of the said Gatti, and that the said child is now restrained of its liberty by the said Gatti, without the consent of license of the petitioner and against its desire, intention and protest, and in violation of its rights under the laws of the State of New York, of the United States and of the Territory.
The respondent made return and claimed to be entitled to the custody of the child named in the petition as the legally appointed guardian, duly qualified as such under letters of guardianship issued by the Probate Court of Graham County, Arizona. And further set forth in the return that the child in question is a while, Caucasian child; that the petitioner on or about the first day of October, 1904, brought the said child to the Territory of Arozona and abandoned him to the keeping of a Mexican Indian, whose name is unknown to the respondent, but one financially unable to properly clothe, shelter, maintain and educate said child, and by reason of his race, mode of living, habits and education, unfit to have the custody, care and education of the child; that said person, to whom petitioner is alleged to habe abandoned said child, voluntarily surrendered it to certain persons, who thereupon placed it in the care, custody and control of respondent, who is a fit person for that purpose, and it will be to the best interest of the child that he be permitted to remain with the respondent, whose purpose and intention it is to rear, maintain, educate and provide for said child as though he were his own.
The petitioner traversed the return, and denied that the said minor was in the care, custody and control of the respondent by virtue of letters of guardianship, and alleged that the said minor has been in the care, custody and control of respondent Gatti by force and violence, and without authority of law or any person legally authorized to place the child in the custody of the respondent.
The case came to trial on the issues of fact raised in the petition, return and traverse ...