TRICK, J.
On the 12th day of July, 1912, the plaintiff, respondent here, as the father, and at the request of his wife, the mother of the infant child in question, filed his application in the district court of Salt Lake County, in which he prayed that a writ of habeas corpus issue against the defendants, who are appellants in this court, to require them to produce said infant child in court, and that the custody thereof be awarded to him.
We remark at the outset that this is another of those unfortunate cases which involves the future welfare of an infant child, which, in this case, was of the tender age of less than one year when this proceeding was commenced, and of the age of only a few hours when it passed into the custody of appellants. Where only property rights are in issue, or even where the life or liberty of adults is involved, however trying or complicated the case may be, we nevertheless, as a general rule, have no great difficulty in finding some satisfactory solution of the problems that may be presented; but where, as is the case here, the future welfare of an innocent and helpless infant and the affections of a young, inexperienced, and perhaps, at the time of the occurrences,. [545]*545tbougbtless mother are concerned, and where the consequences of our decision might prevent an innocent child from knowing its own, parents, although they are both alive and more than willing to assume the responsibility of parentage, the case is quite different. Under such circumstances we cannot remain insensible to the importance of the task nor of the magnitude of the responsibility that is imposed npon us. It doubtless is largely due to these considerations, coupled with the fact that all of us are conscious that in such cases our judgment may be more or less influenced by our feelings, that the judges, of the courts of last resort so often are found to entertain divergent views with regard to what the result in a particular case should be. While the adjudicated cases disclose that there is but little difference among the judges with respect to the- law, yet they greatly differ with respect to what the result should be in view of the facts and circumstances of - a particular case. While the case at bar also has its own peculiar circumstances, nevertheless, in view of the whole record, the writer at least finds no great difficulty in arriving at what to him seems a just conclusion.
Passing, now, to the merits, we remark that upon a hear-' ing the district court awarded the custody of the child in question to the respondent and his wife, father and mother of the child. It is for the purpose of reversing that judgment that this appeal is prosecuted. The facts are not very numerous nor greatly involved, and with few unimportant exceptions are not in conflict. The circumstances under which the child in question passed into the custody of appellants are substantially as follows:
Prior to July, 1911, the respondent, ■ I. E. Harrison, and Ella, his wife, were lovers and engaged to be married, and in the month aforesaid she was about to become a mother. They both discussed her condition, and, as I read the record, he wanted to get married before the child was born, but she, as the evidence shows, objected for the reason, as she says, that she wanted to conceal her predicament from her father, [546]*546which, she said, could not have been done if they were married, and the child were born so soon after marriage. To accomplish her purpose of concealing her maternity, both she and respondent went to see a Mrs. Phillips, who was conducting what she calls a maternity home known as the Wil-lowsmere Hospital, located on the outskirts of Salt Lake City. They went to the hospital to make arrangements with Mrs. Phillips on the 15th of July, 1911, and the child was born on the 17th of that month. Mrs. Harrison says that the child was bom sooner than, she expected, and for that reason she was wholly unprepared for the event; the fact being that she had no clothes whatever prepared for the little stranger, who proved to be a little girl. Before the child was born she made arrangements with Mrs. Phillips to have some one take the child as soon as it was born. Mrs. Phillips, it seems, always was in communication with some persons who desired to adopt infants, and among that number were appellants. Mrs. Phillips, however, tried to persuade the young mother from her purpose of giving away the child, telling her that she would surely regret it; but the young mother was determined at the time, and she freely concedes the fact, to conceal her motherhood from her folks, and especially from her father, who knew nothing about her condition, and to accomplish that purpose to let some one take the child as soon as it was born. Immediately after the child was born Mrs. Phillips informed the appellants that she had a child they could have; but after it was born, and before the appellants reached the hospital, she again spoke to Mrs. Harrison, telling her not to give up her child, but the latter seemed determined to carry out the plan she had mapped out for herself. The appellants lived on a farm and were conducting a small dairy business some twelve or more miles from Salt Lake City, and as soon as they were advised by Mrs. Phillips as aforesaid they went to the hospital to receive the child. Mrs. Phillips, in the meantime, had improvised some clothing for the infant. Appellants arrived at the hospital shortly after noon of the day the child was born, and about three o’clock of that day left for their [547]*547borne with tbe child. Neither of the appellants saw Mrs. Harrison at the hospital; but it seems that Mrs. Harrison heard their name spoken while they were there, and also learned where they lived. Mrs. Harrison’s health seemed more or less affected and she remained at the hospital with Mrs. Phillips three, instead of two, weeks as originally intended. After three weeks had elapsed Mrs. Harrison left the hospital and went to her aunt’s, a Mrs. Silcocks, and it seems informed her of what she had done. It seems that the aunt did not approve of what had been done, and she and Mrs. Harrison, within three days after the latter had left the hospital, went to the home of appellants and then and there asked that the custody of the child be surrendered to Mrs. Harrison. The only difference between the testimony of Mrs. Harrison and her aunt on the one side and the appellants on the other is that Mrs. Harrison and the aunt claim that they demanded the child for Mrs. Harrison, while the appellants contend that it was demanded for the aunt. It is, however, quite immaterial which version is taken as the correct one, since, so far as appellants are concerned, Mrs. Harrison had the legal right to demand the child as will be seen hereafter, whether for herself or for her aunt. Appellants very emphatically refused to give up the child, and it seems that in the interview Mr. Harker, one of the appellants, was not at all considerate of Mrs. Harrison’s feelings. He, it seems, was quite free in his accusations, although he had never seen Mrs. Harrison before nor knew aught about her, except the fact that she claimed to be the mother of a child bom out of lawful wedlock. He seemed to make the most of that fact. Hpon that subject Mrs. Harrison testified that she and her aunt were at the house of appellants at the time for the purpose of obtaining custody of the child for about two hours; that at that time he said many harsh things. She says:
“He said I wasn’t a fit mother for the child. ... I don’t remember all he said. I know he had me crying all the time. He was talking to me cross and crabbed all the [548]*548time, insulting me. He bad me'crying all tbe time. I didn’t talk much to bim.”
While Mr. Harker does not state in so many words that be was barsb to Mrs. Harrison, yet be admits that be said to ber, “Why didn’t you do tbe right thing and go and be married before tbe child was born?” and added, “she said nothing; she just sat with ber bead banging this way.” After appellants bad refused to give up tbe child, Mrs. Harrison discussed the matter with tbe respondent, and they concluded to get married forthwith which they did on tbe 17th day of August, 1911, or just one month after tbe child was born, and -only a few days after Mrs. Harrison demanded it from appellants as before stated. Soon after tbe demand bad been made appellants went with tbe child to see Mrs. Phillips. They informed ber of tbe demand and then insisted that they understood that tbe child bad been given to them permanently. Mrs. Phillips assured them that such was tbe case, and in substance told them that tbe mother of tbe child bad authorized her to give it to appellants, and that they bad a right to keep' it. It seems that tbe respondent happened to call at tbe hospital just at the time appellants were there. He went there be says, to pay Mrs. Phillips tbe remainder that was due ber for taking care of Mrs. Harrison, and in view that tbe right to tbe custody of tbe child was under discussion, Mrs. Phillips introduced respondent to appellants as tbe father of tbe child. Appellants and respondent do not agree as to what took place or what was said regarding their right to tbe custody of tbe child. Appellants, in substance, contend that respondent told them then that they could keep tbe child, that be and its mother did not want it, and that be and she would consent to tbe legal adoption of tbe child by them. Respondent, on tbe contrary, denies that be made such statements. There is also a dispute as to tbe exact time when tbe foregoing, interview took place. Mrs. Phillips also took part in this conversation, and she said while she was sorry that any misunderstanding concerning who should have tbe custody of tbe child bad arisen, yet in case any proceedings were instituted [549]*549by the mother of the child, she would be compelled to take sides against her and to testify that she told the witness to give the child to some one, which direction she followed by giving it to appellants. At this interview Mr. Harker was again somewhat unsparing in his accusations. In addressing respondent, he said that they, the respondent and his wife, were willing enough to give the child away “as long as it covered up their crime.” After this interview, and after the Harrisons had intermarried, they say that they then discussed the feasibility of instituting proceedings to recover possession of the child and had concluded to do so when Mrs. Harrison became quite ill and remained so until late in October, at which time she was able to be up again but was not in robust health during the whole winter. The clear inference from the evidence is that Mrs. Harrison’s illness, and because they had not yet established a home, was the principal reason that the contemplated proceedings were suspended or delayed. Things ran along until some time in March or April, I think it was in April following, when the respondent went to the home of the Harkers and again demanded possession of the child, which was again refused. About two weeks later he again went to obtain possession of The child and told them that he would institute proceedings to obtain possession; but they again refused to give up the child. The evidence also shows that the Harkers own about one-half acre of ground with a dwelling house thereon in Taylorsville, a small village in Salt Lake County, that they are carrying on a dairy business in a small way, and that their monthly income in excess of what they eat amounts to about fifty-five dollars. Mrs. Harker at the time of the trial was thirty-six years of age. Mr. Harker’s age does not appear ; but it may be assumed that he was about the same age, or perhaps a little older. They had been married some fourteen years, and were childless because no children had ever been born to them during their married relation. No reason whatever is shown why they are not morally proper persons to rear a child. Mrs. Harker, before her marriage, was a. nurse, and has had ample experience with children to make [550]*550her a fit person to have custody and control of a child. They also seem to have become attached to the child in question. The evidence shows that respondent was twenty-four years of age at the time of the trial, and, while the evidence is not clear, the inference is that Mrs. Harrison was at least not older than he; that he owned in his own right thirteen acres of land at Crescent, in Salt Lake County, with a water right, and that he farmed the same, which was very productive; that he was building a new house on the land when these proceedings were commenced; and that in connection with his land he also farmed quite a large piece belonging to his brother. The evidence is without dispute that respondent and his wife have ample means to take care of themselves and the child. At the trial appellants sought to show that respondent was not a fit person to have custody of the child, and for that purpose produced one Shields as a witness. The record shows that while Mr. Shields was being examined the following occurred:
“Q. Do you know what his (respondent’s) reputation is for integrity and morality — I mean his general reputation? A. Well, not a very good one, as far as I am concerned. Q. You say, as far as you are concerned. A. No, sir; he has put me to a lot of trouble and expense. Q. In what respect?
“Mr. King: Object to this examination as immaterial, irrelevant, and incompetent.
“The Court: Sustained.
“Mr. Stokes: Exception.”
The record, however, shows that, nothwithstanding the court had sustained the objection, the witness had answered the question thus: “Well, I had a daughter had a child by him.” Appellant’s attorney then again sought to have the witness explain in what respect respondent’s reputation was not good. Considerable discussion then ensued between court and counsel, and the court ruled that the witness could not give any particular instances of dereliction, but must confine his testimony to the general reputation of respondent. Appellant’s attorney then said: “I will withdraw the [551]*551question; I tbink your honor is correct on that point.” ThU ended the attempt to assail the general reputation or character of respondent. No attempt whatever was made to in any way assail the character or fitness of Mrs. Harrison, except the inferences that may he deduced from the fact that she had given hirth to a child before she was married. It also appeared that a short time after appellants received the child it became afflicted with sore eyes, which required much care and attention, and that subsequently it had measles for a week or ten days. There were some other facts produced in evidence which, in view of the questions involved here, are not material.
1 The principal assignment of error is that the court erred in its findings of fact, and in awarding the custody of the child to its parents, Mr. and Mrs. Harrison, upon the foregoing facts. This court is now firmly committed to the doctrine that in such proceedings we will be controlled by what appears to be the best interests and welfare of the child, rather than by the naked legal right of those claiming it. (Stanford v. Gray, 42 Utah, 228, 129 Pac. 423; Hummel v. Parrish, 43 Utah, 373, 134 Pac. 898.) The doctrine generally prevailing in the United States, and the one adopted by this court in such cases, is clearly and correctly stated by the present Chief Justice in the last-cited case in the following words:
“The legal presumption is that it is for the best interests of the child and of society for the child to remain with its natural parents during the period of its minority, and he > maintained, cared for, and educated by them and under their supervision and direction. But this is not an absolute right of the parent. The decisions rendered in this class of cases almost universally hold that where, as here, a parent has surrendered the control of his child when it was a toddling infant to other parties, and permitted them to maintain, .clothe, feed, and care for it until it is eight or nine years of age, and a strong reciprocal mutual affection has grown up between the child and its foster parents, as in the case at bar, and the parent seeks to recover possession of the child, the natural or presumptive right of the parent cannot prevail, if the interests and welfare of the child forbid it. The law in such cases regards the welfare and permanent interests of the child much more important than the natural or presumptive right of the parent. In [552]*552other words, the paramount consideration in such cases is the well-being of the child. If it appears to the court that the physical, intellectual, social, moral, and educational training and general welfare and happiness of the child will he best promoted by leaving it with the foster parents, the presumptive right of the natural parent must yield to the interests of the child.”
2 Appellants’ counsel lay mucb stress upon the fact that Mrs. Harrison, before sbe was married, intended to and did authorize Mrs. Phillips to give the child to some one as soon as it was bom, and that such intention was fully consummated. Authorities are cited which counsel maintain support their contention to the effect that a parent may by parol make a valid and binding gift of his minor child. In referring to respondent and the gift of the child, they, in their printed brief, say:
“He is now estopped to assert any claim upon the child. What rights the law made it possible for him to exercise he refused to take advantage of, and by his silence, and also by his overt acts in the premises, those rights he has now waived. The gift was most certainly and unequivocally made, after the fullest and most complete deliberation and consideration both on the part of the mother and also on the part of the reputed father; and the gift, too, was made under such circumstances and conditions as to amount to an abandonment of the child by them both.”
We need not at this time devote much time or space to the question of gift. The people of this country sacrificed hundreds of thousands of lives and thousand of millions of treasure to destroy the theory that there can be such a thing as a property right in a human being, even though such being be of the lowest type, and by the same token the question that any one may claim any rights to a child by virtue of a gift alone is forever settled. That a human being cannot be made the subject of a gift has always been the rule at common law. The law upon that subject is well stated by Mr. Justice Brewer in Chapsky v. Wood, 26 Kan. 652, 40 Am. Rep. 321, where, in speaking to a question similar to the one involved here, the justice says:
[553]*553“A child is not in any sense, like a horse or any other chattel, subject-matter for absolute and irrevocable gift or contract. The father cannot, by merely giving away his child, release himself from the obligation to support it, nor be deprived of the right to its custody. In this it differs from the gift of any article which is only property.”
See, also, In re Scarritt, 78 Mo. 583, 43 Am. Rep. 768, where that court quotes and adopts the language of Mr. Sehouler. Mr. Sehouler, in concluding his statement, says:
“American courts hold fast nevertheless to the true interests and welfare of the child.”
Nor that reason, those courts disregard the mere technical rights of the parties, and, in determining who shall have the custody of an infant child, place it where its interests and welfare are best subserved. Assuming, therefore, that Mrs. Harrison authorized Mrs. Phillips to give the child to some one, and that pursuant to such direction it was given to appellants, yet the latter cannot claim the child as their own by reason q£ the gift, nor can such gift, when standing alone, make their rights to have custody thereof superior or even equal to those of the natural parents. The mother could revoke or recall the gift as such at any time.
3 It, however, does not follow that, because a parent may not make an absolute gift of his child, he may not by his acts and conduct be held to have abandoned it. Where the latter is the case, those into whose custody the child was placed or given, may have acquired rights with respect to its custody and control which are paramount to the rights of the parent. Where an abandonment has actually occurred, the presumption that “it is for the best interests of the child and society” that the natural parent have custody and control of his own child may have been, overcome, and, if so, the burden is then cast upon him to prove that the best interests and welfare of the child require that it be returned to him.
[554]*5544 [553]*553The question, therefore, arises in this ease: Did the acts of Mrs. Harrison constitute abandonment of the child with[554]*554in tbe purview of tbe rule just stated? In passing upon tbis question, courts are bound to keep in mind tbe fact that an attempt to make a gift of a child by a parent to another, with the present intention that such other shall have permanent custody and control thereof to the exclusion of the parent, is not alone sufficient to constitute abandonment under all circumstances. If such were the case,, then every gift would be enforceable; if not as a gift, it nevertheless would be as an abandonment.
5 There can be no doubt that in the case at bar Mrs. Harrison, before and at the time of the birth of the child, intended that it should be given to some one willing to receive it. She intrusted that matter to Mrs. Phillips, who assured her that she was in communication with some good and suitable people who desired to adopt an infant child. While the mother’s conduct clearly manifested an intention to give the child to some one it nevertheless, in my judgment, does not necessarily evince an intention to permanently abandon the child to any fate that thereafter might befall it. This conclusion is clearly demonstrated to be correct by the conduct of Mrs. Harrison immediately after she recovered from her confinement. In three weeks and three days after she had surrendered custody of her own child she seeks to have it returned to her. In other words, she, after only three weeks had elapsed, recalls her acts with respect to the gift of the child, just as we have seen the law says she might do. Under the law, therefore, appellants at that time had acquired no right to retain the custody of the child as against Mr. Harrison. They, as against the natural parent, had perhaps acquired a legal right to be compensated for what they had done for the child in the interim, but nothing more. The fact that appellants may be fit and proper persons to have custody of the child cannot affect the foregoing conclusions. The only important fact is that through Mrs. Phillips’ influence the child was placed in good hands. Suppose it had happened that within the three weeks Mrs. Harrison, had learned that appellants were clearly unfit and unsuitable persons to have custody of the [555]*555cbild; would any lawyer contend tbat if sucb bad proved to be tbe fact, under tbe law Mrs. Harrison could not bave demanded custody of tbe cbild, and tbat under sucb circumstances it would not bave been awarded to ber forthwith by any court of competent jurisdiction? Indeed, under sucb circumstances, it would bave been ber duty to recall the alleged gift of tbe cbild, and had she done so every one would bave approved ber act. Tbe question, therefore, becomes pertinent: Hid the mere fact tbat appellants proved to be good and suitable people affect Mrs. Harrison’s right to recall the gift and demand the custody of the child within the time such demand was made ? To hold that it did affect her right would, in my judgment, be tantamount to nullifying the very wholesome provision of the law which denies the right of a parent to give away his own child.
6, 7, 8, 9 But in my judgment there are still other reasons why the facts in this case do not show an absolute abandonment of tbe cbild by Mrs. Harrison. In all sucb eases courts may not lose sight of tbe human equation involved in the transaction. To lose sight of that factor is to get away from tbe case entirely. In speaking of the factors tbat should be considered by tbe court in determining whether a party should be permitted to regain the custody of his child in cases where such custody has parted from him through his own acts or conduct, Mr. Church, in his 'work on Habeas Corpus (2d Ed.) p. 712, in a footnote so clearly states the rule that I hereby take the liberty to adopt his language, which is as follows:
“Very much, depends, also, upon the motive which prompted the surrender of the custody by the parent, and the circumstances surrounding the transfer, as well as conditions which have changed since the transfer was made.”
What, then, were the conditions which, to a large extent, may be said to have influenced the motives of Mrs. Harrison in giving away the child?
The evidence is undisputed that she was induced to part with the child for the reason that she wished to conceal her [556]*556shame from her folks, and especially from her father. Is it a crime for a young and inexperienced girl to seek to hide her shame from her own parents % If so, since when ? It may be contended that such a reason is not sufficient to justify the abandonment of an infant child. Granted. Yet it is one that no human court has a right to ignore. Just to what extent a young girl’s mind or motives may be influenced by what she alone may know she may expect from an irate father when she has sinned against the very foundation of cultured society cannot well be judged, except by those who may have had a similar experience. Courts and judges who are merely called on to pass upon the facts after they have happened may well hesitate before they pronounce a judgment of condemnation upon the girl under such circumstances. While in such cases the courts may be justified, and in certain circumstances may even be required, to- condemn the acts and conduct of the girl, yet they have no right to inflict what is tantamount to cruel and unusual punishment upon her by for all time depriving her of the right to have the care and custody of her own flesh and blood, unless it is clear that it is for the best interests and welfare of the child that custody he withheld from her. We may well pause in this case before we inflict such drastic consequences upon the mother of the child in question. It is very clear that Mrs. Harrison’s heart, before and immediately after the birth of the child, was torn by the conflicting emotions of pride and fear on the one side and duty to her child upon the other. Pride and fear prevailed for the time being; but as soon as she had recovered from her confinement the better— the nobler — part of her nature asserted itself, and she at once attempted to right the wrong by recalling what she had done. Conceding that she grievously erred and had wronged the child, is that sufficient to shut the door of mercy against her for all time ? I think not. I think Mrs. Harrison fully atoned for her weakness and wrong, and it lies neither in the mouth of the courts nor in the mouths of appellants to say that she should be deprived of her rights of parentage because of what she did under the circumstances. When the recall was [557]*557made nó equities whatever had, or could have, arisen in favor of appellants. Again, in what way would any one, not excepting appellants, have suffered if they, as they should have done, had surrendered the child to the mother upon her demand? Nor could they after the recall acquire equities, since they kept the child against the consent of the parents. But let us assume that appellants may have had some slight excuse at the time to refuse to surrender the child to its mother. It was only a few days thereafter, however, when they sought to settle the matter by obtaining the legal consent of the parents to the adoption of the child. They utterly failed in that attempt, and for that reason they must be charged with the knowledge that they had neither the legal nor an equitable right to keep the child.
Nor does the fact that the bringing of this action was delayed as it was under the circumstances of the case affect the question. Had the delay lasted from three to eight years, as was the case in many of the cases that are usually cited, the conditions affecting the child, as well as appellants, might have become a factor. Nothing of that kind is present here, and I think no case can be found wherein it has been held that so short a delay, under circumstances such as are present here, is sufficient to create rights which overcome the presumption that exists in favor of the natural parents.
But have appellants a right to the child’s custody for the reason that it is for the best interests and welfare that it remain with them ? Upon that question we have the findings and judgment of the trial court against them. That court-had the opportunity to see, hear, and observe the parties at close range, and in cases like the one- at bar contact with the interested parties may be a great if not a controlling factor in arriving at a conclusion. If, therefore, this case were to be treated as a law action, the findings and judgment, in view of the evidence, would be conclusive upon us. But even though it be treated as an equity proceeding, as I think it must be, then again the presumption that we are bound to indulge in favor of the judgment has not been overcome. Before this presumption is overcome in equity [558]*558proceedings, it must be made to appear with at least reasonable clearness that the findings are against tbe weight of the evidence. This, in my judgment, was clearly shown in Stanford v. Gray, and for that reason the majority of this court reversed the case. But viewing the matter entirely apart from the presumptions in favor of the trial courts findings and judgment, still there is nothing in this ease from which a court can say that the interests and welfare of the child in question demand that it be left with appellants. It is contended, however, that the foregoing conclusions are not justified because there is some evidence in the record showing the unfitness of the respondent to have the care and custody of the child. In the statement of facts we have set forth a verbatim copy of the record upon that question. There it appears that appellants attempted to show res-spondent’s unfitness by assailing his “general reputation for integrity and morality.” All the witness would say, however, was that respondent’s general reputation was “not very good so far as I am concerned.” The witness, when pressed further, disclosed his reason, which was that respondent had “put me (the witness) to a lot of trouble and expense.” Now, the court rules that all this evidence was incompetent for the purpose of assailing respondent’s general reputation with regard to the traits of character mentioned. Counsel acquiesced in the ruling, as the record shows, by withdrawing the question relating to specific matters, and said, “I think your honor is correct on that point.” There can be no doubt of the correctness of the court’s ruling. The rule has become elementary that, where the character of a witness or a party is being assailed, it is the general reputation that must be assailed, and that this may not be done by showing that the party assailed at some time or another was guilty of some derelictions. If character can be assailed in that way, it could easily be shown that there was neither a man nor woman in any community whose character was without a flaw. It may be assumed that no one is so pure that some personal enemy could not find something against the person’s reputation or character. Every one is required when occa[559]*559sion. arises to defend bis general reputation; but no one is required to descend to and explain all of bis individual acts that may bave taken place during bis life. What tbe witness said in tbis case may or not be true. He may be mistaken with regard to tbe main fact. It may be that Hr. Harrison could bave readily explained tbe charge against him if be were given opportunity. Where one has lived in a community as did Mr. Harrison áccording to Hr. Shield’s own testimony, namely, “ever since a very small boy,” be certainly must bave established a reputation of some kind which must be known to bis neighbors who when called on can testify regarding its quality. It was in tbe very teeth of tbe salutary rule that general reputation alone can be assailed that Hr. Shields was asked tbe questions which the trial court ruled were improper. But counsel now contend that tbe answer of Hr. Shields was not stricken from tbe record, and therefore it stands as evidence of the fact that respondent is an unfit and unsuitable person to bave tbe custody of the child. Tbis contention is manifestly wrong. Even though no objection bad been made to Hr. Shields’ statement, yet, in view that tbe case was tried to tbe court, tbe testimony should bave been ignored by it, since it was clearly incompetent for any purpose. If, therefore, tbe trial court should bave disregarded tbe statements, we must presume it did so, and tbis court is also by law compelled to disregard them. If tbe rule that incompetent evidence or statements of witnesses should be disregarded in arriving at a conclusion by tbe court in ordinary cases should be invoked, tbe reason for doing so is much stronger in a case where the welfare of an innocent child is involved. It is apparent from tbe record in tbis case that tbe court and counsel on both sides regarded tbe statements of Hr. Shields as improper, and therefore should receive no consideration. It may be that for that very reason respondent’s counsel made no effort whatever to bave him give bis version of tbe affair alluded to by Hr. Shields. Why should counsel pay any further attention to tbe statement which tbe court ruled was incompetent and could not legally be considered, and es[560]*560pecially after opposing counsel bad given bis judgment that tbe ruling was right ? To now permit counsel to take advantage of tbe fact that Mr. Shields’ statements were not stricken from tbe record would, to say tbe least, not only smack of strategy, but permit them to- take advantage of both tbe law and their own wrong. This is not a case like many found in tbe books where it is sought to uphold a judgment which is claimed to be based upon improper or incompetent evidence to which no objection was made when it was produced. The case before us is one where the court expressly ruled that the evidence in question was improper, and for that reason supposed that it had been excluded from the record, in which conclusion he seems to have been mistaken, and because of that mistake it is now sought to rely on the incompetent evidence, not for the purpose of sustaining a judgment under circumstances where no objection to such evidence was interposed, but for the purpose of overthrowing a judgment where the evidence was objected to, but for some reason had crept into the record and remained there. This may not be done.
10 It is also insisted that the court erred in-not requiring respondent to compensate appellants for their services and expenses in caring for the child. The court committed no error in that regard. As pointed out by Mr. Justice Brewer, in the cáse of Chapsky v. Wood, supra, proceedings like the one at bar are not intended to be used for the purpose of enforcing contracts or awarding damages for their breach, nor can they be used for the purpose of determining the rights and liabilities of parties as in other cases. The courts, both law and equity, are always open for the enforcement of rights of every kind or character. In a proceeding like this the only question involved is: Who should have custody of the child in question ?
Finally, it is contended that according to the rule laid down in Stanford, v. Gray and Hummel v. Parrish, supra, the judgment should be reversed. We have not the slightest disposition either to modify or depart in any degree from [561]*561the rule laid down in those eases. The rule, in my judgment, is not only the correct one, but it is the one that is supported by the great weight of authority. In the mind of the writer there was no question in either of those cases that the best interests and welfare of the children there in question required that they be left just where they were when the proceedings were commenced. In both of those cases to have taken the children and given them to the mother would have resulted in consigning them to a home in which, so far as the father was concerned, they were strangers and nameless. In the first of those cases the mother took the child from a good home and placed it among strangers for what I thought were not good reasons. In the second case the writer was convinced that the custody of the child was sought for selfish purposes. In both cases I was thoroughly convinced that to change the custody of the children could only result to their detriment. I am just as firmly convinced to the contrary in this case. Besides, in this case the child comes into its own. Under our law the Harrisons have legitimatized their offspring, and its social standing in their custody will be precisely the same as that of all legitimate children. The child, therefore, is not a partial stranger in their home, but is of their own flesh and blood, and as such, in my judgment,' will receive the care and nurture to which it is by law and by nature entitled.
Since writing the foregoing the Chief Justice has prepared a dissenting opinion, and in view that he most vigorously, and, as I think, without his usual patience and calmness, insists that the majority of the court, in their conclusions, have offended against both law and morals, and have either misapplied or misconceived the evidence, I feel constrained' to make a few further observations. After carefully reading the dissenting opinion, I am persuaded that in writing it the Chief Justice followed the good example of one other eminent Chief Justice of this country of whom it is said that in discharging his arduous duties he was required “to scorn delights and live laborious days.” I greatly [562]*562regret that my convictions do not permit me to agree with the Chief Justice in his deductions, inferences, and conclusions. Convictions, however, are not a matter of choice. They grow, so to speak, and force the judgment to certain conclusions. I therefore cannot, at will, either create or change them, nor can I in all instances surrender them merely because mine do not square with those of my associates, although in many instances, as I conceived it my duty to do, I have deferred to their judgment. Much as I may regret our divergent views in this case, I nevertheless must follow my own convictions.
The principal grounds of the Chief Justice’s dissent are i (1) That the plaintiff is an unfit person to have the care, custody, and control of his child; and (2) that he has no legal right, even as against a stranger, to' bring an action in which it is alleged that an infant child is restrained of its liberty, and is detained by those who have no legal right to its custody and control. The conclusion of the Chief Justice that Mr. Harrison is not a fit person to have the care and custody of his own child is almost entirely based upon tire statement of the witness Shields, which statement is set forth in both the prevailing and dissenting opinions. The Chief Justice takes issue with the majority of this court in their holding that, where a particular trait of character is in issue, its existence or absence must he shown by proving the general reputation of. the person respecting the particular trait of character which is in issue. If the writer ever entertained any doubt respecting the correctness or utility of the rule laid down in the majority opinion upon that subject, the Chief Justice, in what he has said, has absolutely dispelled that doubt. In his dissenting opinion the Chief Justice bases his conclusion that Mr. Harrison is an unfit person to have custody and control of his child upon one statement made by the witness Shields, and upon his general deductions from other portions of the evidence. Notwithstanding the fact that even counsel for the appellants conceded that his question was improper, and that counsel for neither party, nor the trial court, regarded Mr. Shields’ [563]*563statement as evidence for any purpose, the Chief Justice, nevertheless, uses it for the purpose of condemning Mr. Harrison. Moreover, this is done when it is as clear as any fact can be that the trial court would not have permitted Mr. Harrison to take issue with the statement by showing that it was false, or that the witness was mistaken. The trial court had ruled, and appellants’ counsel acquiesced in the ruling, that the character of Mr. Harrison could neither be assailed nor supported, except by showing his general reputation. How could Mr. Harrison, therefore, meet the statement of Mr. Shields ? Is it not manifest that he could not have done so, and therefore that it would be gross injustice to condemn him upon Mr. Shields’ statement ? In view ■of the record in this case, this would be true even though the Chief Justice were right in his contention that the statement was proper, since it was not considered as evidence by the trial court, nor by counsel for either side. What the Chief Justice says, therefore, not only amounts to condemnation without a hearing, but it in legal effect constitutes condemnation without an accusation in any form whatever. I am aware that cases are cited by the Chief Justice in support óf his contentions. There always have been, and always will be, sporadic cases which are contrary to the general rule. The cases cited, in my judgment, are, however, not well considered nor well decided. If the evidence is proper in one kind of a case where character is in issue, it must be in all such cases. Would the Chief Justice contend that, where a witness’ reputation for truth and veracity is assailed, the party assailing it can call other witnesses who would be permitted to detail the number of times the witness who is assailed has been guilty of making false statements ? Again, if it were contended that a party to an action were ■dishonest, or that he was quai’relsome, and not a law-abiding man, could the particular trait of character assailed be shown by proving that in the first instance the party had been guilty of a number of dishonest acts, and in the second that he had frequently quarreled with his neighbors- or -others'? If this can be shown, then each separate act be[564]*564comes an issue in the case, and the issues may thus be multiplied indefinitely. This could only lead to confusion, and to avoid this is one of the reasons why the general rule is generally adhered to by the courts. Of course much latitude is sometimes allowed on cross-examination. Moreover, when it is sought to prove a habit, such as habitual drunkenness, the courts, of course, permit evidence of individual instance, since that is practically the only way the habit may be shown. Mr. Shields’ statement was therefore clearly incompetent as evidence, even though it had been received by the trial court. Most of the inferences and deductions of the Chief Justice are thus.not only based upon incompetent evidence, but they are based upon a statement which was not received nor considered as evidence by any one interested in the trial, and hence could not have been met by counsel for the plaintiff.
While I cannot 'agree with the inferences and deductions of the Chief Justice which he makes and deduces from other facts and circumstances in the case, yet I have no desire to review those. He, like all of us, has a right to make his own inferences and deductions, and is alone responsible for them. All I desire to say in that regard is that the strictures which he is pleased to make- against both Mr. and Mrs. Harrison are, in my judgment, not justified by the evidence when considered in all its parts.
11,12 Nor is the contention which the Chief Justice makes that Mr. Harrison is without capacity to sustain the action tenable. Even under the cold and pitiless rules of the common law, which were conceived and enforced to shield and protect the royalty and nobility of England against the consequences of their sexual derelictions, the putative father of an illegitimate child had rights respecting it which ordinarily were paramount to all the world except the mother. But the child in question is not an illegitimate child. It was legitimated by the acts of its parents. I am aware that the Chief Justice strenuously insists that such is not the case. But the very section he quotes refutes his conclusion. Has not Mr. Harrison met the conditions im[565]*565posed by the statute referred to by the Chief Justice ? Has he not openly and publicly acknowledged the child as his own, with the consent of the mother, who is also his wife ? Did he not go to the hospital before the child was born and make arrangements for the care of Mrs. Harrison during' her confinement? Did he not pay the expenses for such care? And did he not, when he met the appellants at the hospital a few weeks after the child was born, acknowledge it as his own ? Did he not do so ag’ain when he demanded its custody from them ? Finally, did he not, under oa.th, in his petition, and again in open, court, claim the child 'as his own? If these acts do not constitute a. public acknowledgment, what acts would or could do so ? Suppose Mr. Harrison should die next week, or next month, or next year and leave a large fortune, would not the child in question, be his legal heir under our statute? If its rights as an heir were contested, and the question were left for decision to the Chief Justice, I can even now forecast that his decision would be in favor of the child. Why is it then that, in order to condemn the father, the consequences of his shortcomings must be visited upon his wife and child? Why must, this child be branded with illegitimacy when it can subserve no purpose except to denounce its parents? Yet all this, it is feelingly insisted, is to promote the best interests of the child. When the little girl in question shall grow up and shall develop into a good woman, as we all hope she may, and in her capacity as such in coming in contact with the thoughtless, cold, and pitiless decrees of society, she shall learn and appreciate the benefits of legitimacy, I wonder whether in reading the reflections of the Chief Justice, as she may do, she will meet with as much difficulty in arriving at the conclusion as I have that his observations and conclusions, however well meant, did in fact promote her best interests? Why cast doubts upon her status where none exist? This feature of the case the Chief Justice, I think without intending it, either overlooks or ignores. It is this feature that distinguishes it from the two cases heretofore decided by this court, and on which the Chief Justice relies. The [566]*566fact that children grow up to take their place in society and must ultimately assume and discharge the multifarious and responsible duties as members of society, and as citizens, im pels me wherever possible to upheld their legitimacy to the ■end that they may shield and protect their own and their parents’ good name. Nor can the shortcomings of the parent, when such is not necessary, induce me to expose their offspring to the gibes and sneers of a thoughtless world. But a conclusive' answer to the last phase of the case is that no one in the court below nor in this court even mooted the ■question, of capacity. The question at most, even though it •could be raised as against Mr. Harrison, is one of capacity to maintain the action. Such a question, under our statute, .must be specially raised either before or at least when pleading to the merits, and unless so raised it is waived. 'The question, therefore, not having been raised, I had nc ■occasion to refer to it or to discuss it, and I have referred to it now only because the Chief Justice seems to consider ic ;as a controlling factor in the case. In answer, therefore, to the questions of the Chief Justice, which he propounds in ■various forms, and the substance of which is, “what more is necessary to brand Mr. Harrison as utterly unfit to have the ■care, custody, and nurture of this child,” I answer that the ■only thing that is really lacking is sufficient competent evi•dence to establish his unfitness.
The judgment of the district court awarding the custody of the child in question to respondent, therefore, is affirmed, •with costs.