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In re Waldron

In the matter of Margaret Eliza Waldron

In re Waldron, 13 Johns. 418 (N.Y. Sup. Ct. 1816)
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Court
New York Supreme Court · State Trial Courts
Decided
August 15, 1816
Judges
Jch, Thompson
Citations
13 Johns. 418
Cited by 26
Headnotes
where a habeas corpus is directedrsona torbrin» courTareboumf tosérthelSt per ^restraint" theyshaTi-dlrect £d'over1 ti'a'y loíf'rffits P> íimier .'the'cií the’BcSe?ojind the ’person níaking the application be the p- where an incristoby o“ us it appearert’that for°the ’'Slit remain with its gtandfather,than to be put under the care of the father, and no improper restraint was shown, the court refused to direct the infant to be delivered to the father.
Summary
A HABEAS CORPUS was issued in this case, in May term ° - ^ to ^n^rew McGowan, to^bring up the body of Margaret P^za Waldron, an infant, alleged to be detained in his custody. h appeared, from the affidavits which were read to the court, that John P.' Waldron had married the daughter of Andrew M‘Gowan, and that, having become embarrassed and insolvent, SPGowan, in.February, 1813, took his daughter to his house, without her or her husband’s consent, as was alleged on the part of Waldron,' but positively denied by the affidavits on the opposite side. Mrs. Waldron lived with her father until her death; and, during her residence with her father, Margaret 7 ° . > o EUza Waldron was born, who has always been supported by ^er grandfather. Waldron used to visit his wife shortly after her.removalto her father’s, but had discontinued his visits for a long time previous to her death, and had not visited his child, being deterred, as lie alleged, but which was denied by the other side, by the unkind and repulsive treatment which he met . with from M‘Gowan and his family. M‘Gowan is a man in very affluent circumstances, and abundantly able to educate and maintain his granddaughter; and, it appeared, that Walt&ron was insolvent, and unable to pay certain trifling debts which he had contracted, although it was alleged that his mother, with whom he lived, was competent and willing to' support him and his daughter, it appeared, also, that the infant’s mother was the ■only daughter of McGowan, and the infant the only remaining grandchild in the family, and would, most probably, receive the greater part of the property of her grandparents, on their death.

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Opinion of the Court — Thompsonjch

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Thompson,jCh: J.,

now delivered the Opinion of the court. Upon the réMrn to the habeas corpus,, which has been allowed in this case, the jjuestion presented to the court is, whether they are bound to deliver over the- child to her father,, From the affidavits which have been laid before the court, little doubt can be entertained that it will be more for the benefit of the child to remain with her grandparents-than tobe put under the care and custody of her father ; and if this court has hny discretion in süch cáse, it will, no doubt, be discreetly .exercised, by permitting the child to remain: where she is.

The general principle applicable tó cases of this kind, is laid down by Lord Mansfield, in Rex. v. Delaval and others, ( 3 Bur. 1436 ,,) that in cases of writs of habeas corpus, directed to private persons, to bring up infants, the court ,is bound, -ex debito justifies, to set the infant .free from an improper restraint-. But they are not bound to deliver the infant, over to any' particular person. '"This must be left to their- discretion according' to the circumstances that shall appear before them. In the present case the child cannot be considered under any improper restraint | *421 she was born at the house of her grandparents, and has aiways lived with,! and been brought up by, them. There is nothing appearing, in any manner, to show that she is kept there against her will and consent. I he case of the Commonwealth v. Addicks and wife, (5 Binney’s Rep. 520.,) is very much in point, and a strong corroboration of the principle, that it is a matter resting in the sound discretion of the court, and not matter of right which the father can claim at the hands of the court. It is to the benefit and welfare of the jnfant to which the attention of the court ought principally to be directed; and this can be much better guarded and .¡protected by the court of chancery, under its peculiar jurisdiction* than by this court, upon habeas corpus. (10 Ves. jun. 59.)

We think, therefore, that it will be a due exercise of the discretion with which the law has invested us, tq deny the present application ; leaving the father to pursue his remedy, if any he has, in the court of chancery, where questions of this kind more properly belong; there being no actual improper restraint of the infant. We think proper, however, to suggest, that the father ought, on all suitable occasions, to be permitted to see the child, taking it for granted that he will not attempt to take her away from the care and custody of he*.' grandparents, except by the aid of some judicial proceeding.

Motion denied.

How later courts describe this case

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Cited by 26 cases

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1830–1831: 11834–1835: 11840–1841: 11844–1845: 11848–1849: 11856–1857: 11864–1865: 11872–1873: 11876–1877: 11882–1883: 11886–1887: 21890–1891: 31894–1895: 11900–1901: 11902–1903: 11904–1905: 11912–1913: 11920–1921: 21930–1931: 11942–1943: 11946–1947: 12006–2007: 118302026peak 1890 · 3

Relies on it most ⓘ

  1. Mercein v. People ex rel. Barry25 Wend. 63 (N.Y. Sup. Ct. 1840)
  2. In re Burrus136 U.S. 586 (1890)
  3. Burns v. Bines55 A.2d 487 (Md. 1947)
  4. Merchant v. Bussell27 A.2d 816 (Me. 1942)
  5. In re Barry42 F. 113 (1844)
  6. Hiller v. Fausey904 A.2d 875 (Pa. 2006)

Most recent

  1. Hiller v. Fausey904 A.2d 875 (Pa. 2006)
  2. Burns v. Bines55 A.2d 487 (Md. 1947)
  3. Merchant v. Bussell27 A.2d 816 (Me. 1942)
  4. Wear v. Wear285 P. 606 (Kan. 1930)
  5. In re Standish197 A.D. 176 (1921)
  6. People ex rel. Riesner v. New York Nursery & Child's Hospital129 N.E. 341 (N.Y. 1920)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

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