National Republican., 1876-03-06
THE COURTS.
COURT II GENERAL TERN.
DsoIsfoa in the zanIo Pools C,ss.

DsoIsion in the Zanlo Poole Case.
Last Saturday, in the Court in General Term.
Justice Humphreys read the opinion of the ma
joriy Of the court In the case Of Zsnlo Poole the
bog acrobat, who was some months since taken
BY Justice wyiie from the Poole Brothers, While
performing at the Theatrs Comique, and dellv
to Mr.. Gatchei, president Of tAs Society for the
Prevention Of Cruelty to A,infls, under writ
Of hdbeas corpus sued out By the latter. The
httie boy seemed delighted at the prospect OF re-
turning to his brothers sad again appearing upon
upon the boards- The following Is the opinion:
N re. Zanlo Poole. After an examination OF
this sase ap Of opinion chat the proceedings
were erroneous and illegal from the suing out Of
made By the Justice who issued The writ. O'1''
l. Because Mr.. 0atchel had no more right to
sue out this writ than any man or woman fn the
no way enttled to the custody of It. and in way
responsible for his physical, Intellectual, moral
OF rengioas tsaining. All tnese matters we're no
have been dismissed when it appeared that
Gatchel was a mere volunteer, having no right 10
guardian or any one entitled by law to interfere
with Its custody. GSee Rea VS.. Clark, Burr,
1888; eT Parts Child, 20 Eng. Law and Equity. 25s
10 East, 1875, and Linda VS.. Hudson Uush ,3S5.l Z
2. l think it was wholly irregular upon the
marshars return of service of the writ OF hGbeas
parties against whom the writ was % Issued 'Io TO
make return to this writ, forthwith to order
this infant to be delivered into the custody Of Mr.
Gatchel, the party who sued out the writ, until
the further pleasure of the court.
3. 1t is wholly erroneous to suppose that the
proceeding in this case is a proceeding ia equity.
The writ of hdbeds corpus Is a common law writ,
and If It can be issued at all tn this District, it
may be issued and proceeded with BY any one Of
who issues the writ happens for the time being to
be holding the court for hearing causes in equity,
he has the samo power, and no more than the
Judge holding the Criminal or the Circuit Coart,
or the Judge who Is holding court at all for this
writ may be issued By any judge in chambers or
In vacation.
4. On looking through the voluminous tssti.
mony In this case dud no evidence proving, or
tending to prove, that the liberty of this boy,
compelled to perform any fsats that he was NOT
anxious and willing to try to perform The only
thing to the contrary alleged in these papers is
the statement of Mr.. Gatchel, made In the petit
tion upon which the writ was issued, and the re-
cttal contained In the writ. Mr.. Gatchel was put
upon the witness stand before the ex lminer, and
wholly fails to state any fact in confirmation of
the statement contained in his petition In that
respect. On the other hand the testimony abund-
antly shows that the boy was kindly cared for
by his brothers, and neither compelled nor urged
to perform any acrobatic feat which he was not
S. think the order Of the 18th Of november
made on the surface of the writ by the marshal,
which committed the custody of this boy, Zanlo,
to the petitioner, Gstchel, before any return was
made or permitted by the person against whom
the writ was Issued, was erronsous and Irregular
The infant should have remained in the custody
of the marshal, or, at least, In the custody OF
some suitable person In no way connected with
the controversy arising out of the writ, to be ap-
bailed for his appearance from day to day In
court until the time Of his hearing.
.. tnink the Justice VINO issued tue writ 10 this
Poole as to whom he desired to have the custody
Of him, or at least to have appointed some intel.
ence to that subject and report 20 the court as to
whether he had intelligence sufficient to m AXE
reasonable selection as TO his custodian 1t seems
70 hA fkal all Lad. Ia las
apparent intelligence OF the child is to be looked
at rather than the number of his years. Children
have been consulted upon this subject BY courts
from the age of six to fourteen, and whether tho
court would regard the express wishes of such
infant would depend upon the rsasonsbleness Of
hibited- In this case the petitioner, Gatcnel,
sHears Zanlo Poole Is five years of age-a matter
in respect to which he unqusstioaabiy knows
nothing whatever. And 1t turns oHt, from proof
unquestioned for accuracy by those who must
have known his age, that he Is In the eighth year
Of his age, and is testified to be q boy of much
intellis encs beyond his years. In confirmation
of this it is only necessary to read bis answers
10 questions put to him on direct eross-ex an
nation, sreported to the court by the examiner,
:. II Is insisted on the argument Of this case
before the court in banc that the proceedings
land statute passed in 1898, and which may be
found reported In Thompson Digest, pages II, 49,
70 and 50. But Zanlo Poole Eas not one Of the
description of persons named in the act, and, be-
sides, the power conferred over the persons
named in 1t was not conferred upon the Court Of
the Orphans Courts Of that Stateor upon justices
Of the peace. But, In case like the present,
peace had power Or authority to seize upon, bIad
condition q z,alO Poole; e any person what
missed, and the complainant, Gatchel, ordered to
pay the costs to be taxed by the clerk. Besides,
this boy, ZanIo Poole, and his brothers, against
uh ha WrI wa a al nasural horn n
jects OF the Queen of fGreat Britain, owing no al
1egianee to this country, AMI were entitled to be
let alone so long they violated none Of our laws
Judge Macarthur concurred in the opInion In
. few caustic remarks as TO the action Of Gltchel
in the premises and the proceedings in ths court
below. He, however, deprecated the training Of
children of such tender years In such . pursuit,
and his concurrence in the above opinion was
based upon the fact that the proceedings below
were clearly violatiye of the law. He announced
that Chief Justice Cartier concurrsd with him.
The boy Zanlo was delivered by Mr.. Gstchel
IBto the custody Of his 81. bf0.hs. at p m, and NJ:
action tor damages against Gatchsl at once.
ROUTINE BUSINESS.
Lewis Ford and - Hubbel were appointed
constables. 9. Y. Atlee was admitted to the bar,
as also ]. r Rideout. Allen agt Allen; man
rected to be entered against sureties. Dodge W.
J T. S. and 7. Co.; decree dismissin~ bill Lang
don VI he same; order sd5talilrs demurrer:
Ballard W. Msndls; decree dismlssina NIL - W
others. Amber Va. whippls; opiniOn BY Judge
Humphreys, directing recommittal to the audi
tor. Birkhead Va. Aldridge; appeal dismissed.
Affirming decree below. Hstzsi va B. aud o.
railroad; exceptions Oyerruled. Williams vs.
Gsrdneri decree reversed and cause remsnded.
MCNAMARA vs.. Condir; decree below affirmed.
Ray ct al VS.. q. and o. Canal Company; Opiaion,
decree affirmed. McBIairVs. Gsdsey; decree be-
cree reversing the bill below, by which the bill
was dismissed.
Circuit Court.
In the libel case Of Wilder vs.. Welch, which
has occupied the attention of the Circuit Court
for the past several days, the Jury, on I.urday
at 130 O'Clock p. m, asked to be allowed to confer
with his Honor, Judge Macarthur, as to the law
in the case. which they did not understand. HIS
Honor endeavored to explain away the dIfd ,ulties
they were remanded to their room TO bring In
verdict. After an absence of two hours they
could not agree upon 8 verdict, and were dis
charged. The question of disagreement was as
to motive; whether the defendant was sctuated
by malice, without which an award for libel would
not hold. This case has created much interest in
this city and sbrosd, not only because of the dis
aoGS settle the ShstSs Sst an II
the Government has the right in q privileged
communication to cast aspersions upon his asso-
ciates upon mere suspicion. Suffice IL to say, Mr.
Wilder's conduct as an agent Of the Government
was fully vindicated, not only by Judge Davldge,
defendants counsel, but BY the defendant him
self in his evidence given In the case 70 the court
and jury.
Burrow OF al VS.. Ross. Verdict set aside, pro-
vided the defendant ufthdraHs the statute of
limitations.
same Va Same. Same order.
Jeuett vs.. Rapley. Motion oyerruled.
John r. Baker, esq, of the Supreme Court of
Massachusetts,, was admitted, on motion Of Mr..
Davidge.
German American Savings Bank vs. Peter
MCNAMARA. Judgment by default.
Barber vs.. Lobsiger. Demurrer Withdrawn,
and the case stands upon the plea and replication
ASSIGNMENTS FOR TO-DAY.
81 1874, SO, 1885, T9 H. l07 81, 100, 10l Isl, r. 23
H. 100, g. 49, 152, $50, ia l3j, 40, l44 49, 1i5.
Orphans court-Judgs olin.
In re- estate of Michael Mccarthy, deceased.