The pilot and transcript. [volume] (Baltimore, Md.) 1840-1841, 1840-11-18
ICOncluded.1
SATURDAY, NOVEMBER IA, 1910.

SATURDAY, NOVEMBER II, lotV'
The unanimous opinion Of the Court 'caS de
koered By Judge Barton, the President Judge
of The Court, as JOllotcs:
The latest case in date, is that OF barry cS
.Nerceia. which, in various notifications OF
shape, has been, between May, 1889, and the 2lst
of October, 1910, acted upon by ne fewer than
four different tribunals of the city and State OF
New York IL appears to have been originally
presented to the Recorder of the city, who de-
aided against the claim of MIR. Barry, because,
In his opinion, the mothers custody was the most
beneficial for the interests OF the child. MIR.
Balry's next application was to the Chancellor,
who. in a long and elaborate opinion, refused to
interfere with the mothers custody, Principally
upup the ground that it was OF an age too tender
te be deprived Of the maternal care. The appll-
cation was renewed TO Judge Ingls, one oil the
Judges of the Court of Sessions, who also deel-
5ed against the relator, chiefly on the ground
of res adjsdicatG; but who says expressly, IN the
manuscript opinion or letter addressed to MIR.
M'Keon, and which has been read to the court,
that Z" independently of the question oil res adJ'-
dicata, should have had no hesitation in deci-
ding the question as did, in favor of the mo-
Their. The perseverance or atfectlon oil MT
Barry directed an application to the Supreme
Court for a reversal of the proceedings OF Judge
Inglis-from which tribunal he has been tortu-
nate enough to obtain, at length, favorable de-
cision. ba iBd upon various considerations. But
this decision Of the Supreme Court OF New
York, like that of every ether to which reference
has been made, while it admits the better title oil
the father, denies his absolute right, and refers
the disposition of the infants custody to the
discretion of the court, to be exercised by pro-
Der regard for its welfare.
The principle, then, upon which the ,add'c6S
Case was decded-a decision which one OF
the counsel for the relator considered judi
cial n. Jinaly, and earnestly invoked this court
10 disregard it, 10 "rde over it, and ride 1t
down''--did not originate with Chiei Justice
Tilghmau; he but followed IN the tracks winch
both foreign and American Judges had imprin-
ted: and the safety and wisdom Of the path have
been recognized by all Judges who have fol-
lowed hias. Whether, under the very peculiar
circumstances" of that case,p Judge Fllghnan
exercised bis discretion" in the manner which
was really most likely to be for the best inter
eats of the children, is not so clear; but Ger
tain it is, that Notwithstanding the Wife was
on adultress, divorced from her husband, and
then living in a state of semi-legalized prostltu-
tion with her paramount, with whom she had
contracted marriage in despite OF the prohib-
itory statute of the 18th of September, 1856
and although one of the children was ten and
ibs other seven years old--he refused to take
them from her, because 'itappeared that, con-
sidering their tender age, they stood in need
of' thai kind of assistance which could be af-
folded by none so well as a mother" And
when. nearly three years after, the several par
t;es were again brought before him, 10 have the
same question Predetermined, I'D Sergeant x
Rawle. ia, he transferred the custody Of the
cb;ldrea 10 the father, not because a new light
had dawned upon his mind, dispeling the dark
ness mes of the past, and revealing the absolute pa
ternal right, but only because '.the children
did not stand before the Court in the same sit,
uaiion as formerly" because they had arrived
al an are when their morals would inevitably
becol tainted by their mothers evil example
In the latter decision, Chief Justice ilighInan
declares il obe the settled talo oil fennsyiVa-
mia fhat The custody OF tn. child is always &c
he regulated by judicial discretion, exercised N
accordance with what may seem for its best Ia