Morning herald. [volume] (New York [N.Y.]) 1837-1840, 1840-10-28


before Judge lnglis, an affidavit mate by Mrs Barry
when the parties were before the Recorder, and
another aihdavit made by her when the matter was
before the Chancellor. Aside from these afdavits,
there is not rticle Of evidence going to impeach
the realtors title 20 the custody OF the child In
deet, he stands before the Court, chargeable with no
iaa t; while the wife is without shadow OF excuse
Ter the dt.grtion Of her nus band.
thcre - a serons objection against receiving
'hrse afii avits. Except i'll csses Were the party
seeks protection az ainst persona! violence, the &c
neral ruie certa My that husband and w'fe cannot
De witnesses atalnst each other And have never
been able u get the difficulty which felt, IN
The People v. Chegaray, Is Wendell, 637, concern
ing the admissibilIty of such evidence. Where
there has beenn act or threat of personal violence
X can rarely, ever answer any valuable end In the
administration Of justice TO enquire into those little
difficulties aud private griefs which sometimes exist
between hus band and wife: and spreading their Diff
ferences before the world could hardly fail TO widen
the breach between the parties, and put end to all
hope OF reconciliation This would be so if the
proof came from other sources but it woulc be
much verse, if tn. parties were suffered to become
mutual accusers of each other.
But In the view have taken Of the case il is UNI
necessary pass dentively upon the admissibility
Of such evidence. On locking into these aii javits
we find that Mrs Barry entertains agais,
her husband, and mplains of uRkind treatment
Her suspicious are wholly unsupported by proof :
aud II we read her complaints, in connection with
the rebutting evidence from other sources, wecan-
not but see that she much in fault her hus
band, in the angry controversies which sometimes
sprung up between them. And il we lay the rebut.
ting evidence entirely oat of the case, the ground
that it was not received by the Judge and then make
but reasonable allowance for the probable cooring
OF an interested and excited party, there is nothing
in the affidavit Of the wife laying proper founda
tisn for rejecting the husbands claim to the custody
Of the child. Mrs Barry, taking her own state
ments and rejecting all explanations, has made out
nothing like case for asking divorce, either alb
solute or limited /; and although she has cause Of
complaint against her husband, there is reason to
dntaht hat he = e
proper discharge Of parental duties. That is enough
to settle the question Of custody in his favor-espe
cially in case where it does not appear that the
child has any expectation in the way OF property or
advancement on the part OF the mother, which will
be lost by yielding to the claim of the father.
Had Mrs. Barry been able to charge her husband
with some Of those grossly immoral acts which au-
ihorise a divorce, either absolute or limited, it
would not necessarily follow that she was entitled
to the custody of the child. The husband may be
in fault in relation to his corjuga duties, and still
may be quite clear that the welfare ofthe children,
which is the controlling consideration, will be beet
promoted by committing them to the custody of the
father. But Mrs Barry has NO such heavy accusa-
tions to bring against her husband. She relies a
highly wrought picture of their family jars, in
which it is very probable there were faults upon
both Sides and which, in any point of view, do not
form a proper subject for judicial enquiry. We
cannot go beyond such acts as authorize legal Sc
paration, 2. X. 8. IA Art. ill., w. Those are mat
tiers which admit Of trial courts and ares can en-
quire into them with reasonable pros pect arri-
wing at truth But most Of the many little things
which 60 TO make up the happiness or misery OF
admit Of any satisfactory judicial investigation.
On this branch OF the case, we think there is no.
thing which has any legal tendency to control the
realtors right to the custody Of the child.
Mr.. Barry is a subject of he Queen Of Great Bril-
tain, and will probably remeve the child to HE resi-
dence in Nova Scotia; but that is not valid objec-
ton to his claim. In the case Of the King VS.. De
Manneville East 20 the mother and child were
Iish snht md fhof ath L. f.,
reigner, but an alien enemy and yet the Court OF
Kings Bench refused, on Habeas Corpus, to re-
store the child TO its mother although the father
had taken it from her by violence. and she swore
IT i'll treatment. Application was then made to the
Lord Chancellor, as the representative Of the King
as Porens pafrie and he made an order restraining
the father from removing the child Of the king
dom. He proceeded on the ground that the child
was British subject and q ward Of the court, and
the father an alien enemy. Bat he refused TO re-
store the child to the mother, because she had vo
UNFAIRLY separated herself from her husband. In
relation TO that he said, 4" must consider the wife,
at present, rs living under circumstances under
which the law will not permit her to lve that she
tion Of the marriage contract, which am bound to
consider subsisting until am told by better autho-
rlty than sdavits, that it ought longer to sub
sist. This is an application by married woman,
living in q state OF actual unauthorized separation
to continue, far the removal OF the child will
have Influence 10 continue, that sepa ration which
must say Is not authorized by law" De Manne-
vile De Manneville, 10 Yes. 81. These remarks
are not altogether inapPlicable in this case.
Whether our Court Of Chancery possesses any
such jurisdiction as was exercised by Lord Eldon,
in the case Of De Manneville, is question which we
need not consider IL does not arise upon this Ha-
bcds Corpus: and BESIDES the relaor, though a fo-
reigner, is not an alien enemy In the present state
OF civilization, and when intermarriages between
citizens and subjects Of different governments are
common, l cannot believe that any court, either
in his (,rns Rita xnull Nh nC
stranng party IN the exercise Of either his conju-
gal or paternal rights, the sole ground that he
was an alien. II would be highly immoral, as tend
ing to break up the marriage contract and sunder
the ties of kindred, and could only be justified il at
all, in state Of war; when the principle Of selpro-
lection becomes paramount to almost every other
conside ration.
1t is also said that the reator has concluded him.
self from demanding the child, by the agreement Of
the 7h Of June, 1855 Bat this agree ment void ON
several grounds. Although the pondent is named
in and has ahxed his seal to the instrument, he Is
not party to ~, for any practical purpose. There
10 no covenant by or with him. There is neither
trust nor trustee. IL is simply covenant between
husband and wife no not competent 10 contract
with each ether. There is no consideration for
the REALTORS covenant. No one agrees to indemui-
~ him against the maintenance Of the child, which
10 TO be left With the mother And finally, the deed
was made TO provide for future separation be-
tween the parties, which the law will not sanction
Carson v. Murray, Paige 4S3, Rogers v. Rogers,
4 i'd SIS Hindley v. Westmeatb, 6 Barn & Cresw
300, Westmeath v. Westmeatb, I Dow. Parl. Rep.
N. s. 6l9. 1t is well worthy Of consideration whe-
Their all agreements, based on the voluntary separa-
ton Of husband and wife, are not contrary To law
and absolutely void But it is enough that this is
clearly an illegal covenant.
The next question relates to the conclusive effect
Of the prior proceedings, before tie Recorder and
the Chancellor. The judge decided that the nat
tiers in difference betwe the parties were to be
considered as res adjudiedta. mp to the time Of the
decision; and that he would only hear
n o( had a9ts shu.s
this decision, he afterwards recsi-
we'd evidence on the part Of the respondent which
went back Of the Councillors order. I do not
see upon what principle this evidence was ad.
mtted Estoppels must, in general, be mutual
ard IL the relator was concluded by the prior de-
csion, so also was the respondent But this is nota
matter Of much practical importance: for in the
view have taken Of the case, the sgreem ent be-
tween the husband and wife ernipg the custody
Of the child and the other evidence which was given
Of matters existing anterior TO the Chancelors or.