The British Press; or, Morning Literary Advertiser.
London, England, 1825-11-17 00:00:00

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Mr. COMMON•SERGEANT—I have also other affidavits, die •
closing new and material facts.
The LORD CHIEF JUSTICE—Had not the affidavits better be .
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read, Mr. Soulett, that you may have an opportunity of answering
them ? , •
Mr. SCART.ETT—I think they want no answering ; they may, • ••
however, be read, and then, if your Lordships shall be of opinion •
that there is any thing in them, I can answer it. ,
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Mr. Co reatorr•StatneaNT said, that he was perfectly well
aware that there was a difficulty in this case. lie certainly did Doi
mean to contend that the father is not the proper guardian of the
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child ; neither did he mean to contend that Mr. Moore O not the • •
father of this chill; but there were, he said, circumstances eon- 1 •.
fleeted with this case, which he thought would call upon their
Lordships to interpose their authority, and make this tumor the ea- I
ceptions to the general rule. He referred to the case of King
v. De Manville, as governing the present. He apprehended that i
whatever rights the father might have to the guardianship of his child, •
he might Set in such a way as to wave his right. The mother of this I
child was now the wife of Colonel Fitzgibbon living with him; I
and the child has been kept by them as a part of their family. it • .
would be necessary to attend a little to the dates of the different • .4
events. Henry Moore, the subject of this application, was born • 4
in the year 1822; a sister, called Florence, was born about a year ,
after; in September, 1823, Mrs. Moore left her husband to live ~
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with Colonel Fitzgibbon, and took these two children with her. 1
An ant on was afterwards brought against Colonel Fitzgibbon. ..
Notice Had been given to produce the notes of the Sheriff's Office,
in Dublin, upon the judgment by default. I
Mr. SCARLET T—l am not aware that any notice was given.
Mr. CommoN.SeitocaatT—lt was intended to draw some line ' 1
• etween theme children and the others, and we wished with this
view to have the notes of the proceedings in the Sheriff's Court, /
and the Act of Parliament creating the divorce. I
The Loan CHIEF JUSTICE—I never uuderstond the Act of
Parliament had any thing to do with that.
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Mr. -Coal No x.SEßSEtorr—And here are two children in the
same predicamenta-Henry Moore, and Florence, his sister. s
The Load Corr", JUSTICE—We have no question before us
in respect to the other child.
Mr. COMMON-SERGEANT—There are circumstances respecting.
that child very material. The Lord Chancellor has said " there is nu
proof that this child is illegal, and therefore I will not make it a • .
ward of Chancery." In De Manvirlea case the rule laid down is,
that the father is the guardian, unless the Court shall be of opinion '
that he is not fit, for some reason or other. He had the affidavits of ,
Lord Brandon, a Peer arta a Member of the Ministry of the Bets-
blished Church. This affidavit discloses a conversation with Mr. $
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Moore, in which he expressed his belief that this child was the •
child of Colonel Fitzgibbon ; that he would cut him off with a „ 1' ~.
shilling ; hut that he would nevertheless enforce his right to claim
this boy, and do every thing in his power to annoy Colonel Fitz. '•• •
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gibbon.
The LORD Oiler JUSTICE-11'hat is the date of this con. I I
versation ?
Mr. COMMON.SERGEANT—Last September.
The Lon n CHIEF. JUSTICE—When was the divorce ? -
Mr. f'omatOle-SEROCANT—In December. 1828. ,
Mr. SCARLETT-1 have affidavits hi which Air. Moore dis-
tinctly denies this conversation.
Mr. COMIcoN-SEltaltaXT—lt does not appear to me that the
conversation is denied. Mr. Moore does, indeed, deny the con-
versation , .
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generally ; but be states, that he felt great indignation,
and that he would not say what words he might have used in the
warmth of his irritation. Surely it will not do, in such an import.
ant matter, togivemerely the effect of words, where the precise ex- 1
pensions are so necessary. But supposing that view of the case is e '
not quite sufficient, then he had other facts to bring forward. I --
With respect to the youngest child, no applicatiou had been • ,
made. He had to add, that when the action was brought, Col.
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Fitzgibbon said lie would pay 5,000/. and no more, whatever the •
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verdict might be. The habeas corpus was sued out and served
upon Mrs. Fitzgibbon, in Paris. Surely, when the children were in , ' •
the custody of the actual parent, they might have been permitted
to remain there. He had also affidavits of Lord Kilwarden, in I , •
i which he stated, that he was employed by Col. Fitzgibbon to
manage this affair for him in his absence on the Continent ; that
he appointed Mr. North to put in an appearance to the action by
51r. .bore, and then to suffer judgment to go by default. Damages
were assessed its the Sheriff's Court, Dublin, at 6,0001. A meet-
ing was &Reminds held between the friends of the two rattles, in
which 5,0001. was paid according to the inst.uctions of Col. Fitz- ..
gibbon, and was accepted as a discharge of the damages. But then
the two children were to remain in the possession of Mrs. Moore.
Col. Fitzgibbon would not have entered into this arrangement,
1 t sinless he ,had been assuredthat she was to have the custody of the ,
children. There was also an affilavit of Ala Peter Lowe: he , i
states that he bail a conversation with Mr. bloom last December.
. Air. Moore on this occasion said that the 6,0001. must be paid to
save appearances, but that he would repay 1,000/.
The Lo RD Come JusTacg—That is not affect the question I t
of the children. s.
Mr. Couatow-SEltosaarn—What follows, my Lord, does at- ; (s•
feet them. Ale. Moore said that if he took the girl, she should w
never enter his house; that he would bring her up in a poor cabin, '
and when she should be of age he would give her 1001. and marry
her to some farmer. The Learned Counsel went on to contend that
the eireumetance of repaying the 10001. seemed like a bargain.
The Loan CHIRP JUSTICE.—There ts no evidence that Dlr.
Moore knew any thing of it. '
Al r. Se alltZTT—Mr. Moore never heard of it till last July.
Air. Justice BAYLEY—The agreement was not made with him.
Mr. COMMON•SEROZANT—The use I make of the comperes- ;
non is this—that for two years, while Mni.Fitr.gibbon was residing
in Paris, no attempt is made to get the children train her, but as
soon as the money is paid, Mr. Moore immediately turns round and
applies for a writ of habeas corpus. He submitted, on the whole,
i that though the general rule was, that the father should be the
guardian of his own child, yet that this was an excepted case, inas-
much as the father sought to get it into his own possieseion, not for
the purpose of promoting its welfare. bat An the gronfication of his
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own resentful feelings toward the other parties. By his agreement
he had in tact waved his claim to the custody of this child, and it
wonld be paying too much regard to the mere technical relation of
husband and wife to destroy the happiness of Also sad Mts. Fitz-
gibbon, by depriving them of their own child. • ,
Air. BROUGHAM said that the child had been brought up in
France, and spoke nothing but the French language; that it was in
a very poor state of health, and a removal to Ireland would he very
dangerous. Under these circumstances he contended thatkir. Moore
was acting most cruelly in attempting to take this child over to
Ireland, where there was not a word of French spoken—in exposing ,
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it to so Ireland,` here
perils and sufferings in the came of •the voyage—in
taking it away from the nurse, who hat, hitherto, so carefully .
tended it.—and in tearing it from the bosom of its mother, one at
least of its parents, and of whose identity there could be no doubt.
The Learned Counsel agreed that these circumstances presented a ' s
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, deplorable view of the cruelty of Mr. Moore and his unfeeling a
heart, and -showed how little he was qualified to hate the custody
of his own child.
Alr. CHITTY said a few words on the same side.
31r. Schott TT, in reply, said, that he was anxiety* to nay a few !
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words as insinuations bad been thrown out timintat his latent,
which he very little merited indeed. It had hantsaill that ha made
this application for the purpose merely of sanoy4og the other •
parties, and not with • view to benefit this child. Now, Mr. ?• ,•
Moore had set out in his affidavit, that having &potter isf appoint- -,
',tient over 10,0001. he had, by a codicil to his Wilaisppoiated this 1 •
sum to be equally divided between this child mit twe tibial sisters; I •
that this codicil has been in existence for a considerable time; that
'it is still subsisting ; and that he means this disposition to remain
as it is. With reference to the younger child, Ise dletinetly stated
that he had reason to doubt whether she was hfil. The Learned I
Counsel then went on to comment on the cogent arguments which . .
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Air. Brougham had advanced to impeach the humanity of Air..
Moore, and sat down by expressing his conviction that then I
Lordships would restore this child to Its proper easteder • .
The Lo RD CHIEF JUSTICE—There out be op thitabt dig Mr. : r •
Moore is the father of this child, nor any doubt that it is die duty •
of this Court to give him the benefit of its authority, to assist in re..
storing him his child. Ido not say that case, may not occur where
a father ought to be deprived of his natural guardianship; such af,
. cases may undoubtedly happen, but lam clearly of opinion that 1 ,
this is not one of them. A good deal has been said about the 60001.
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being paid as compensation, and on the ground of 10001. being ie. •
paid, it has been attempted to fix the character of a bargain upon
the transaction, and to consider it as a compensation to Ala Moore
for yielding up his child to the care of Ales. Moore. I cannot as.
any thing in this ; and here again it has beesaatid, :het the mothir
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is the must proper guardian of this child. What would bb the et_
feet of its being brought up with her ? In that ease the stein of il-
legitimacy would be inevitably attached to it t but brought up t
under the care of its father, it would go in the world es his legio- /
mate offspring, and with all the advantages which such a coneider-
ation bestows. Something also has been said on Mr. Aloore's re-
sentful observations respecting the young"? child ; there is nothing ...
'in this. His observations necessarily sprung from *conviction that
this daughter was nut his own. The Court, therefore, cu•ders, that
, the person in whose custody Henry Moore stow is, take care of hint
till he be in a condition to be removed, and then deliver Mtn over •
to his father. ,
.......ame.-- •
COURT OF COMMON PLEAS, l'i'eDwEsDAT,•Noe. 16. • •
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The Court was occupied the greater part of the morning In fakirs
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justifications of bail, and in hearing menials of cooese(of so iti•
terest but to the parties. I
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At one o'clock the Lord Chief Justice sat at Nisi Prima , .... I.
TIIWAITES v. SIANTOW.
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This was an action brought by the plaintiff; who is a tailor, re. 1
siding at the fashionable part of the west end, against Air. Joseph
Manton, whose name is so celebrated among sporisnieu for furnish.
ing them with the sine yea non of pleasurable existarce—'vide/wcct, ,
the nil patent double-barrelled. The action was to recover the I ,
amount of a tailor's bill. It was undefended, and themante of the
plainurs witness the only thing remarkable in it t age,,about •
13 years, of a ruddy comp tlexion. full-bodied, with an excnt head, .
and all the better tor keeping well.
Mr. Sergeant VAUCHIAW--Your tame, Sir. • ,
W iteees--Port. wine. Sir. . ; •
The 000 RT—Don't be insolent; your name, Slo A. 1 •
Witness (looking crimson red)—Port-wine, my Lima, t i,
Mr. Sergeant 'a'auottost (putting up his giess)—l baillree we
must take it so. my Lord. .
The Co u RT—What ! put port wine iota the witness-bend. ' '
Mr. Sergeant VAULHAW—That is not where 1 Oleo* prefer
patting it certainly, my laird ; but as it roil: the tooled. iiiiyclieta, ,
I hope your Lordship will let it be so:
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And such was in verity the pateonimic of the tailors'. boy.
Throughout the whole notnenciggsgeigil 401110tican sopenina vs
have never met one we relished. 4140 ft.
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I The plointiff bad a vetffict foi 7V , I ~..,.1.1,
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