The New York herald., 1877-11-28
A FATHER AND HIS CHILD.

Judge Spelr yesterday rendered q decision In tho
OF Margaret Kennedy, who seeks to obtain pos
,cssion OF her infant child, three months old, In
The CUSTODY Of her husband, Thomas Kennedy, from
whom tho petitioner Is separated account OF his
alleged cruel conduct In her petition shc says that
when she left her husband she threo eldest
children with her, but tho itllc left behind.
She states that It needs a mothers care, as tits not
robust. The case was argued at considerable length
lew days since, and the decision OF Judge Spcir, as
follows Ia interesting, decides nice question of
law-A writ OF haboas corpus to bring up body OF
The child of the detained custody its
father The wife commenced suit Tor limited
divorce on tho ground OF cruel treatment. and II is
alleged that thereafter tho husbands conduct was
such TO drive her IRON bis house with her thrne
children, not being abc TO take with her her
cniid only three months ODD. This allegation Of
cruel treatment denied by tho fathers return to
the WRIT which sets up sucn conduct of his wife
cast suspcion on the paternity of the child. Tho
traverse denies the misconduct Of the WHO charged.
1t is difficult to resist the conclusion tnat there is
wilful departure from the truth the
other; perhaps both. iho OF the decisions In
this state, and, apprchend, In all the States that
the fathers right to his child Is absolute and IN
aliebabie. IL frequently occurs tnat TINS supposed
right is made to yield TO the mere Will OF the child
when II has sufficient discretion, though sulI
Ia infancy the eyes ot the law, and IL Is allowed
make its own Tree choice as TO the disposition oil ts
person II follows from these principles that the
teress OF the infant are deemed paramount to tho
claims oil both parents The Court must To IL nat
In all cases the rights Of the yield to tho
peculiar IN this that tue clam is 10 take the
custody c tho child from tho fathcr who has, ap
pcars, empoyei stranger to take the charge and
care oil the child IL appears that the mother from
the time ol its birth 10 the time OF her separation
from her husband, has suvkcd IL from her
breast IL is OF tender clearly requires
maternal care Having reference to the exercise o n
sound discrc ION, solely for tho present o tho
chd, conclude tnat, pending the action least
mother must have tho custody and control of the IN
liant, with liberty TO the iathcr and 500 II at all
reasonable hours.
ALLEGED MALICIOUS PROSECUTION
Some time ago Cclcstin Gautlcr brought a suit
against Etennc Guirau, 10 recover damages Tor al
legged criminal relations with his (plantin,s) VILE
This suit, which tried in the Marine Court re-
suited In failure the part OF plaintiff TO recover
verdict. Tho defendant IN that suit has now turned
the tables by commencing another suit In the same
TO recover Of tho complaining husband damages
for malicious prosecution In this suit an order
arrest was obtained against the defendant vacntc
which motion was argued before Judge AcAdam IN
Marine Court, Chambers, yesterday. In arguing
la support OF the motion, Mr. W. 5. Wolf
the part OF defendant, contcndcd that
no action lies for malicious prosecution merely for
bringing a suit without sufficient grounds. The nc
uon hc said must have Dcen without cause aud ma
lcous. Defendant alleged want oi affection on tho
part OF his wiie while paintn boarded IN hrs house.
lie his wife in the street with plainun lie found
his bedroom door bolted on the insdc, and when
forced II open plalntn ran OUT 1his was sum
rcnt to show that defendant had probable cause
lor arresng plantn In the action for GRIM. con.
In addition defendant had alleged that his servant