Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1893-09-21
rnn puoK EnY D rcIsioM.
Judge Grubb Orders That Eleanor Duel
cry he Remandcd to john Townsend

Judge Grubb Orders That Eleanor Ducle-
cry he Remandcd to john Townsend's
Custody. n.
There are two claimants to the GUS
tody Of Ella Nora Duckery, a 10-years-
old colored child who is now living
with John Townsend at Second and
Shipley streets, in this city. The child's
mother has retained Peter l.. Cooper,
Jr., as counsel in the ease and on Mon
day last writ of habeas corpus was is-
sued by Judge Grub commanding
Townsend TO produce the body of Ella
Nora at hearing Friday.
When the hour arrived for the hear
ing Mr.. Townsend was present with his
counsel William s. Hilles, and Ella
Nora accompanied them. Townsend
claims that the child was indentured to
him by the Board of Poor Trustees, and
that he is the proper guardian. Mrs.
Duckery on the other hand claims that
she is the child's mother, and is there
fore entitled to the custody Of the waif.
The case occupied the attention of
Judge Grub during the entire morning.
The matter has caused considerable
conimotion and there is no telling where
the ENHANCEMENT will eventually end.
In chambers, Monday morning, Judge
Grubb handed down a decision remand-
ing Eleanor Duckery, colored minor,
to the charge of John Townsend, her
guardian. =-..
In determining the nature of the order
he gave in the Duckery habeas corpus
case Judge Grub said:
at seems to be the view generally
adopted by the courts throughout the
United States that although the proper
office of the writ of habeas corpus, in
respect to the illegal detention Of a
child, is to release from illegal restraint
by simply discharging the infant when
the minor is of years of discretion. Yet,
If he is not of age, to determine for him
self, the court or judge must decide for
him, and make an order for his being
placed i'll proper custody. ,,
1.-THE rule in regard to custody has
been substantially enunciated by Lord
Mansfield. That the order of the court
! or judge is discretionary, will be found
in most of the adjudicated cases. If the
child be under age, or from mental in
capacity, incapable Of choosing, the
court or Judge will substitute the Ju-
| dical discretlon'for his choice.
"The welfare of the child is the first
and cardinal rule to be considered in
this exercise Of discretion ON the part of
the court or judge in determining to
whom the custody of tue infant shall
be confided. But this welfare depends
upon so many and such varying circum-
stances that it is not subject to any def
mite rules.
Believing this view to be correct ]
feel both authorized and constrained by
the law and facts of this case to order
that the writ be dismissed and to re.
mand the said child, Eleanor Duckeryt
to the care and custody of the said
Alinda Townsend and her husband, the
said John Townsend, the respondent
JUDGE eRUBB's ORDER,
And now, to wit, this 18th day Of
September, 1893. the body of Eleanor
Duckery, in the foregoing writ of habea'
corpus mentioned, together with the
cause of her detention, having beer
produced. before me by John Townsend
in obedience to the said writ, and thi:
cause having been heard and considered
it is ordered, adjudged and decreed tina
the writ be dismissed, that the sale
Eleanor Duckery be remanded to tht
custody OF the said John Townsend ant
j Alinda, his wife, and that the costs II
this case be paid by the petitioner.