Morning herald., 1839-07-01
AT Chambers.
Before the Recorder.


intimated that this interesting case would be
fully heard this mornng, early as ten o. clock
very large audience consisting OF most fashonably
dressed ladies, had assembled 10 hear the details.
Mr. Anthon on the part Of Mr. Barry, asked his
hsnor If he knew whether Mrs. Barry and the child
were in Court. His honor referred the learned
Counsel, to the legal advisers OF that lady,
delicate health, il lad been judged prudent not to
have her present untii i was absolutely necessary
III his honor deemed Il lloper for the child to be IN
Court, they would send Tor 1t, and the mother ike
wise. . ,
Fir Anthon said then his first proceeding would
be to for order to reform the return, as no
woman could come before a Court sf Common Law,
and make oath asanst her husband and as her aii-
davit appended 10 the return, he shoald contend
that no proceeding could be valid, II that aihGavit
was on the record. 1t said in the common law,
as laid down by our Saxon ancestors, and 1t was OF
no use to enquire now, whether the law was gallant
or ungaan. il Sufficient that the statutes had
merged the right he property Of the wife in the
husband; and il il had debarred her from testifying
either to his profit prejudice, why the tribunals
could nst help it-they were only to enforce the law
as they found it,
The learned gentleman then went on to show in
what particulars, and for what reasons, the Courts
of Equity admitted different practice to the Court
Of Law, and lie wound up his argument, by moving
for reform of the return to the writ, and TO have
the affidavit appended to il entirely abrogated.
The Recorder said that perhaps it would be as
we'll at the present stage Of the proceedings for the
legal advisers Of both parties to understand the eX-
tent of his powers in the present If Mrs Barry
chose to reside at hcr fathers, he could not compel
her to alter her choice although If she staying
there under dureSs, could be brought keiore him
by habeas corpus, and the parties who detained her
made 10 show cause, or TO set her at liberty. The
same course could be pursued with other parties
who had arrived at years Of maturity, but over
these the Court could exercise no jurisdiction, after
the return had been made 10 the writ. His Honor
said there a case In point, In which two giris
left their parents, and went TO reside with the sha
kers Their father GOT writ of habeas corpus and
brought them before the Supreme Court but they
afterward returned 70 the Shakers, and the Court
had no power deter them In the case Of so young
= child as the before the Court, he was not
nrepared to say what disposition must be made OF IT.
Mr. Anthem said he was fully persuaded that the
Courts have power 70 compel wife to return to the
house of her husband
Thc RECORDER expressed hims self to be Of a contra
ry opinion and said thai he was satisfied that he ha1
only powcr 70 relieve wife where she was detained
from her hus sband against her own will
Mr. Girard then went into an able argument to
shcw that Mrs Barry ought to be allowed TO give
her own account Of the difficulties between herself
and husband.
Marshall s. Bidweil, ON the part Of Mr.. Barry,
made an able and eloquent address TO the Court, de-
picting in the most ioreibe and logical manner, thc
Ills Mr.. Barry suffering in consequence Of the
unnatural detention Of his wife and child by the pa
rents Of Mrs. Barry.
The Recorder said that he would take the papers
home with him, look into the case, and slve his de-
cison on Thursday morning at iO O'CLOCK
Iry III
was apain crowded with ladies' aad gentlemen TO
near The details of the matrimonial squabbes be-
tween MIR and Mrs Parry. The learned counsel on
both sides having taken Their places, ms hohor pro
ceeded to deliver the following decision on the first
oucstion. which was submitted to him by the coun-
sci for Mr.. Barry
0Tbe motion on the pat Of the rcator, Mr.. Barry, is to
strike the affidavit Of Ar' barry from ne re'ur o. '
inserting the letters in such places extracts only are
oct forth . r,c -, - - a., -
,n non The legal princpl that neither husband wife
be witness III other For the Psrpos 81 deeshs oe
sent aspect o tbs investigation, the respondent and what
obraon the law imposes upon the respondent to habess
Ie arpeation to the commission from the habeas corpus
upon he ground hat Mrs Barry and her child coshn.
cd or re.,raned o their liberty by Thomas H. Mercein the
father Of MIR. Barry u Revised Statutes I'd edition, o.
sec. a. ,.,.. - r :, ..
.J mnon Mr. Nectn whose house Mrs. Barry she
having the custody Of the inan, ehhd Mary Barryand
he ri, &c babe corpus and the petition upon which issued
10 The knowledgr Mr. Barry IL She and her "a
ther confined or the infant Mary Barry of her IL
, round b, he habc. against MIR Mercein 70
make return Why restrained The child in liberty in what
manner she held The custody Of the child
Oh edition. ID vol r. s. a. The writ must be obey
ed IL into the OF the person having the Gus
ay Of IN, Individual chgcd to be restrained Of hs liberty
though the be directed in or TO anothe
per,ohe ycron informed must be brought up though h'
T , being 10 protect the person Of the citiren being
hd oS The liberty the citizen, forms and de
that regarded should reach tn
,;dl having custody Of TIE person rcsraiaed of hi
liberty that asins the object OF the writ and the writ
then be obeyed -. ..s A. a.. al. = ~
~ u,,c.r returned to the haseas corpus-T
ehst rrt Of the signed by Nr Mercenssws that
a , .,rs. Ms Barry of her liberty but that she
c. zen, 4. 90 or .,ly With her iaast child she
rhos.e This part of Mr. Merceirs statement conceded
- tr by the counsel for the eo and any .rther proceed
ing. relation te the all ed restraint, oy W.T. "ereen
Mrs. Barry, or her infant l. Unnecessary !.
The case then different sspee,-hat infant, "
restraint exists in g, acceptance, rc'srst W UT. Dsr
~ The habeas corpus aud petition having reached MRS par
be by the statute referred to- was bound To make re
considered her affidavit as her return
an. rr setting forth VII, child is ia her custody con
aer Il precisely the though the petition q PIT Barr
Led writ corpus be issued TO Mrs Barry hec'
- her 10 bring up the body of the infant IL that case 81
would obliged TO return under oath IN answer TO the ac'
stated In hi- petition. ., -
not view the atestaon either o the husband TO the ps
r If the VII the RETURN violating the rule OF la'
h,sbaud al wife Ill not be witnesses against each ohe
h oa,h grow the necessity of the The husban
III , nave the bras corpus without swearing the pet
.and IA equally obligatory that the wife should
hsr RETURN Reisd Stat t0S, Stc "a last clause For hes
refuse motion to strike Mrs Barry aHdavit or
a. a,s,,n The other branch Of the motion-ha should d
-, ~ ,,,rn 10 bs arecd Wy inserting the whole lette
,vbe, extract, hav nade refuse because II 10
auir,d ,ba party sonl Nser ~ proceeding OF
document than they deem applicable to their side Of h
question This decision accompany however, with the
estion that IT, upon notice produce the letters which
given across the table the letters are not produced w
consider the or neuralse the eonsruco
claimed Cor the extracts"