#### *In the matter of*Margaret Eliza Waldron.

where a *habeas corpus*is directedrsona torbrin» courTareboumf tosérthelSt per ^restraint" theyshaTi-dlrect £d'over1 ti'a'y loíf'rffits P> íimier .'the'cií the’BcSe?ojind the ’person níaking the application be the p-

where an incristoby o“ us *it*appearert’that for°the ’'Slit remain with its gtandfather,than to be put under the care of the father, and no improper restraint was shown, the court refused to direct the infant to be delivered to the father.

A *HABEAS CORPUS*was issued in this case, in *May*term *°*- ^ to *^n^rew McGowan,*to^bring up the body of *Margaret P^za Waldron,*an infant, alleged to be detained in his custody. h appeared, from the affidavits which were read to the court, that *John P.' Waldron*had married the daughter of *Andrew M‘Gowan,*and that, having become embarrassed and insolvent, *SPGowan, in.February,*1813, took his daughter to his house, without her or her husband’s consent, as was alleged on the part of Waldron,' but positively denied by the affidavits on the opposite side. Mrs. *Waldron*lived with her father until her death; and, during her residence with her father, *Margaret*7 ° . > o *EUza Waldron*was born, who has always been supported by ^er grandfather. *Waldron*used to visit his wife shortly after her.removalto her father’s, but had discontinued his visits for a long time previous to her death, and had not visited his child, being deterred, as lie alleged, but which was denied by the other side, by the unkind and repulsive treatment which he met *419. with from *M‘Gowan*and his family. *M‘Gowan*is a man in very affluent circumstances, and abundantly able to educate and maintain his granddaughter; and, it appeared, that *Walt&ron*was insolvent, and unable to pay certain trifling debts which he had contracted, although it was alleged that his mother, with whom he lived, was competent and willing to' support him and his daughter, it appeared, also, that the infant’s mother was the ■only daughter of *McGowan,*and the infant the only remaining grandchild in the family, and would, most probably, receive the greater part of the property of her grandparents, on their death.

*Van Wyck,*in behalf of the father,

moved to have the infant discharged from the custody of his grandfather, and delivered to his father. .In support of the motion, he cited *The King*v. *Delaval,*(1 *Wm, Bl. Rep.*412.,) and *The King*v. *De*Manneville, (5 *East’s Rep.*220.)

*T. A. Emmet*and *Smith,*contra,

contended, that this was not the proper writ for the father in this case; that the writ of *habeas corpus*was for the benefit of a prisoner unlawfully detained in custody, and granted on his application. The writ is solely for the benefit of the person wrongfully deprived of his liberty, and for the purpose of obtaining his liberty; third persons never apply for it, except in the cáse where the party is so confined that he cannot himself make the application. Here there is no pretence that the child is forcibly detained, or in any degree deprived of its liberty ; on the contrary, it is under the care of its grandparents, in whose house it was born, arid who have taken the whole charge of its nurture and education.

The only case in which this writhas been abused, or wrongfully applied to a case where the party was not under restraint, is that of *The King*v. *Johnson ;******and that case was, afterwards,, overruled as not law.† All that the court is bound to do, is to see that i • -i • , . the party is not wrongfully imprisoned, or detained against his will. If he is so, they will set him at liberty; and, if of sufficient age, leave him to go where he pleases. This writ is hot to be made the engine of parental authority. Where a child was 13 years old, he was allowed to express his wish, and the court of K. B„ in the exercise of its discretion, refused to order *420him to be delivered over to his father. Where the child is of such tender yeárs| thát it cannot form a proper judgment, this 'court will exerci'se-its judgment for the benefit of the, infant, and do what, in its conscience, it thinks most- for the interest of the child. It is in the sound discretion of the court to alter the custody of the infant, or .riot. The-interest and welfare of the child are alone to 'be .Viewed oh- this writ. The rights of, parental authority,, or claims of guardianship, áre to be tried in "a different way.*' *J*

*The Court*said they would "take tinte tó advise until the next term, ándrémánd th'ie -child, in the meantime, to the custody of the grandfather, with the view that the matter might be amicaadjusted, so as'to render any interposition of the court unnécessáry-; and they strongly recommended to. the father to let his . child"'continue with its grandparents.

*Cur. ad, vuli.*

lío compromise, Or agreement, having taken .pi ace- between the^parties claiming the custody of-the chjld, . j - .

*

*1 Str.579.*

†

**2 *Str.*982. King v. *Smith.*

*

**Bac. Abr. Hab. Corp. (B. 13.)

Thompson,jCh: J.,

now delivered the Opinion of the court. Upon the réMrn to the *habeas corpus,,*which has been allowed in this case, the jjuestion presented to the court is, whether they are bound to deliver over the- child to her father,, From the affidavits which have been laid before the court, little doubt can be entertained that it will be more for the benefit of the child to remain with her grandparents-than tobe put under the care and custody of her father ; and if this court has hny discretion in süch cáse, it will, no doubt, be discreetly .exercised, by permitting the child to remain: where she is.

The general principle applicable tó cases of this kind, is laid down by Lord *Mansfield,*in *Rex.*v. *Delaval and others,*(3 *Bur.*1436,,) that in cases of writs of habeas corpus, directed to private persons, to *bring up infants,*the court ,is bound, *-ex debito justifies,*to set the infant *.free from an improper restraint-.*But they are not bound to deliver the infant, over to any' particular person. '"This must be left to their- discretion according' to the circumstances that shall appear before them. In the present case the child cannot be considered under any improper restraint | *421she was born at the house of her grandparents, and has aiways lived with,! and been brought up by, them. There is nothing appearing, in any manner, to show that she is kept there against her will and consent. I he case of the *Commonwealth*v. *Addicks and wife,*(5 *Binney’s Rep.*520.,) is very much in point, and a strong corroboration of the principle, that it is a matter resting in the sound discretion of the court, and not matter of right which the father can claim at the hands of the court. It is to the benefit and welfare of the jnfant to which the attention of the court ought principally to be directed; and this can be much better guarded and .¡protected by the court of chancery, under its peculiar jurisdiction* than by this court, upon *habeas corpus.*(10 *Ves.*jun. 59.)

We think, therefore, that it will be a due exercise of the discretion with which the law has invested us, tq deny the present application ; leaving the father to pursue his remedy, if any he has, in the court of chancery, where questions of this kind more properly belong; there being no actual improper restraint of the infant. We think proper, however, to suggest, that the father ought, on all suitable occasions, to be permitted to see the child, taking it for granted that he will not attempt to take her away from the care and custody of he*.' grandparents, except by the aid of some judicial proceeding.

Motion denied.