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


make any final dis position Of the matter. He left II
as he found ito be settled at another time His
order was that the child "remain in the care and
custody of her moth .r'not permanen,ly-but until
the husband aud wife sh nld make some arrange
ment ''or until the custody Of the said child shall be
changed 6y Judicial decision" 1t is impossible to
MAINTAIN that this was ina ad publication upon any
point whatever. The whole matter left open 70
be settled by Judicial decision" Ii would be
strange adeed, the reator could be barred in SEEK
ing judicial determ nation of his right by a judg-
ment, which not only left the question unsettled but
pointed him to the very remedy which he after
wards pursued.
The order of the Chancellor, after reciting that
the mother under no restraint, passes upon two
points in relation to the child First 'that the
said infant daughter is not Improperly restrained of
her liberty by the said Thomas Il Mercein." Aud
second, "that good reason nOic erists for taking
the sid infant child from its said mother" Now
garding this decision absolutely conclusive upon
the points decided do not see how il could pro-
perry affect the question afterwards on trial before
Judge Ingls The first point decd by the Chan
ceorwa that the child, on the tioenfy-sirM Of -du-
gust, the day the order was made, "not impro-
pcrly restrained Of her liberty" by the respondent
II certainly did not follow that there nerer icouid be
any such restraint. And We must give the decision
amuch wider influence than properly belongs 10 il,
before it IAN be made to reach the question which
was presented to Judge lnglis some months after
wards And here may notice, that before that Of
icer, the custody the child not only expressly
admitted by the respondent in his return but it was
abundanty proved. refer to the letters Of the 2Sth
of August The respondent, having the wife and
child then in his house writes to the relator saying
6" now posttceiy forbid your coming tn my house at
all, until this interd ctiOR is revoked in writing by
me-" Then follows a letter from the wife, with the
written approval of the respondent, giving the rela
tora license to have one sight of his child provided
you signify your intention to me in a note "a hours
previous" And allowing him the further privilege
Of calling quarterly the like notice, ''unless any
thing shall occur which IN my opinion shall render
such future injudicious." 1t is needless TO
say that except in an extreme case no man of spirit
would consent to see his child upon such terms.
lnthc case Of child under two years old, and hav-
ing no will its own in relation 20 the place Of resi-
dence, 10 not necessary that bolts and bars should
be used For all legal purposes the child is in the
custody of those with whom it lives. In Exparte
Mcclellan BOWL. Pr. ca. 81, although all improper
restraint was denied and the child in delicate
state Of health, she was taken from the mother and
delivered to the father In the case Of Lord West
meath's children, Jacob PAS note CO. the mother
| one Of whom was years DID, and the other seven
months, "tcere not under imprisonment, restraint
or dursss OF any kind, but she admitted that DE
had ''the and custody Of their persons by vir
tue Of deed Of settlement. She further determined
that the children "were tenderiy aud properly nur-
tured and taken care of by her. and that it for
in her care" but the Lord Chancellor made order
for the delivery Of the children to their father This
case goes beyond the point now under conside
and with many others establishes the paramount
right of the father to the custody Of the children
The question here is not, whether the child ia
tualy suffering under durcss Of imprisonment; but,
Wnether there KIND OF which defeats
the right ofthe father The respondent, having the
child under his roof positively forbids the father to
enter the house, except upon terms which proper
self-respect made nadmssible; but il he could sub
NIT to the terms he only had license to enter the
house "to see Mary" net for the purpose Of taking
her under his care and protection 1t 10 impossible
tn deny that this is such restraint as defeats the
right ofthe father to the custody Of his child; and
lays proper foundation for asking redress by ha-
beds corpus These facts did not exist at the time
! the Chancellor's order was made. And ] repeat
that his lud gment, that there was improper re-
straint on the 18th Of August cannot conclude the
relator as to matters which have transpired since
| that time
But it is said the Chancellor did not decide that
there restraint, but only that the child was
not Improperly restrained, and that, in point Of
fact, he passed upon the title OF the fatherto the
tody ofthe child and decided it against him. The
answer to this argument is, that II does not appear
by the order, that any such question was decided
and the rule is that the adjudication is only conclu-
sve, when "dirsciy upon tie point" and is not evil
from the judgment" Duchess Of Kin. ston's Case,
20 How. ST. Tr. 53s We cannot go single step be-
yond the judgement, for the purpose fnferring any
thing which il does not plainly declare.
The other point decided BY the Chancellor was,
that no good crisis for taking the said
infant child from its mother" This part OF the Or
deis open to the very obvious remark that il does
not purport TO be final judgment upon the rights
ofthe parents. The language is guarded the order
does not profess to settle the title but only afrms
that mo good reason no,o exists for interfering
between the parties. For aught can see, there
mLy have been very special reasons, such as the
dangerous illness Of the mother child for not ma.
king final disposition Of the matter at that time
and the language ofhe order strongly favors the
cluson that the Chancellor only intended to decide
that he would not then interfere, without concu-
ding any thing 20 the future. And here may
mere remark, that not At liberty, for the pur-
pose Of making out estoppel, TO infer any thing
from the judgment which II does not plainly declare
And IL neither appears in terms nor by necessary m
pcatiou that the Chancellor decided, or intendea
IN dc fhp eaft ~ r. W AT ~ ard
scented 10 Judge Inglis-to w.t. whether, as between
the father and mother the former had not the better
right TO the custody Of their minor children.
But there is another, and insupe rable objection
to holding the relator concluded by the former pro-
ceedings. The petition for the habeas corpus. and
the other papers before the Chancellor, were not
given in evidence before Judge 1ngis, and like
mark 10 applicable to the petition and papers before
the Recorder Estoppels are not favored in the law,
and he who sets them up, must make out his ease
He must show that the same matter was not only
adjudged, but that il directly in question in the
frat suit before it will begood by way Of estoppel in
second action. Duchess Of Kingstou's Case, %
Phil Ev 33i--'5 Cow. & Hills Notes TO Phil.
1003,4 The peadings or other allie cations between
the parties as well as the verdict and judgment in
the first suit, must be given in evidence. The judg-
ment ITSELF whatever may be its language, or what
ever it may profess to decide, concludes one by
way Of estopPel, until it appears what issue was
joined between the parties. So, where party sets
up the decree or order ola Court Of Equity, as an
estoppel he must produce the plsadins. or the pc
tition, and other allegations, which the decree or
order was founded, I Phil. Ev. 1913 Gresley
Eq Ev. los 10. Roscoe CT. Ev. l57- : In short,
IL must appear that the matter sdjudged IN the first
suit, was plainly involved in the issae joined be.
tween the parties IL is clear therefore, upon seve-
raj grounds, that the reator was not concluded by
the adudicaticns upon the prior writs OF habeds cor
pus
II follows from what has been said, that the Judge
erred in the disposition which he made OF this
HIS SHOULD HAVE MADE AN ORDER COMMITTING
TI
RrLAroR.
We have taken the most favorable view OF this
for the respondent, by considering the eridsnce
well as the record, properly before us. II this
Genes within the habeds corpus statute, IL may
well be doubted whether the ctrfiorasi brings up
any question OF evidence r. 8. 573 500. Birdsall