The People on rel. Johnson a. Erbert.

correction, who indentured them out to Mr. and Mrs. Erbert. Meanwhile Johnson was keeping a saloon in Chicago.

Johnson applied to Mr. Justice Gould for a habeas corpus to obtain the custody of the children. After hearing the case, the

the court, and, as in the case last referred to, it would have been more properly made to the court where the equity powers of the court could give more suitable directions as to the care and custody of the child than can be ordered by a judge in this proceeding. For the purpose of enabling the respondents to carry out the suggestion above mentioned, I shall make no order to deliver the child to the petitioner, but I direct this matter to be adjourned to the second Monday of October, at 10 A.M., before me. In the mean time the respondent must make suitable provision for the child at a suitable boarding-school, so that it may then appear that the interests and welfare of the child will be best promoted by leaving him under their charge. If no such arrangement is made before that time, the petitioner may renew this motion on the adjourned day.

In the MATTER OF THE PETITION OF EMMA J. ROBINSON AND OTHERS, INFANT CHILDREN OF REUBEN B. ROBINSON. (July, 1859.)

In 1853, Reuben B. Robinson was divorced from his wife, on the ground of adultery committed by the husband. The custody of the children was given to the mother, and the sum of $200 was ordered to be paid to her for the support of each of them during minority. The mother having deceased, the children now petitioned the court for the appointment of a trustee, to receive and pay over the moneys which would have been paid to the mother for their support.

This was opposed by the father, on the ground that the order of the court expired with the death of the mother. He stated that he was willing to support the children at his own house, and claimed that he was entitled to their custody. Held, that so long as the mother lived the judgment operated to give her the custody of the children, and to compel the father to provide her with the means for their support. Beyond that period the judgment ceases to have any effect. The father's rights over the children being restored, as he is bound to provide for all their wants, he is also entitled to their care and custody. The statute also shows that the petitioners are in error in supposing that a trust was created by the judgment of divorce, which continued for the benefit of the children after their mother's death. By the provisions of the Revised Statutes in regard to such payments (2 Rev. Stat., 148, § 58), the provision for the children is to be made by an order, or between the parties. The order or judgment is only to be between the parties-husband and wife. When that relation is terminated by the death of either, the object of the order and its vitality ceases, and the surviving party is restored to his or her natural rights.

The prayer of the petitioners is denied.

In the MATTER OF MARY JANE MCKAIN, AN INFANT, &c. (April, 1863.)

LEONARD, J.-The office of this writ of habeas corpus is to liberate the person of a child when restrained of its liberty or unlawfully detained. When the child is of very tender age, as in the present case, it is the duty of the court to deter

The People on rel. Johnson a. Erbert.

judge remanded the children to Mr. and Mrs. Erbert, rendering the following opinion, July 1, 1863.

GOULD, J.-In the view I take of this matter, it is not necessary for me to pass upon the legality of the indentures, any further than to hold that, as far as the respondent Erbert is concerned, they are voluntarily and legally entered into, and that he cannot, now or ever, be allowed to question their validity, or evade his responsibility under them.

This being so, and there being thus legally secured to these children a home, where, the evidence shows, they can be, and in all human probability will be, well provided for, and kindly and carefully brought up to some reputable mode of life, the case is one to be considered under the general equitable powers of this court. This court, like the former Court of Chancery, exercises a general care and custody over all minors, and “this power is for the benefit of the child, and is not to be defeated by one having a mere legal title to the custody of the child," whether that title (or right) arise from a natural relationship, or from an act of the law.

As to the daughter Anna, while the relator, in terms, denies that he gave her to the respondent, to be by him and his wife adopted as their own child, he does not state how, or upon what terms, he did leave her with Erbert, although he does state that he left the boys there, upon an agreement to pay for their board. This failure to give any affirmative version, on his part,

mine for the child when it is restrained of its liberty or unlawfully detained. The court, in such cases, must be guided by the true interests of the infant, in respect to its nurture, education, sex, and associations. The court should decide as the infant would, if possessed of the discretion to determine rightly and truly for herself. In the present case the child is a female. The mother has associates, at times, improper for the correct rearing of a daughter. The grandmother, who has the custody of the child at present, has the advantages of virtuous associations for the child, and is willing and desirous to continue the charge which she has voluntarily and affectionately assumed over her little granddaughter for the last five years.

In my opinion, I should greatly err if I held that the child is restrained of her liberty or unlawfully detained. The mother must, however, be permitted to visit the child once a week in the daytime, at the house of the grandmother, at such hour of the day as the grandmother may appoint, having proper reference also to the convenience of the mother.

The writ is therefore discharged, and the child is continued in the custody of the grandmother.

The People on rel. Johnson a. Erbert.

of the way in which she was committed to Erbert's care, is strong ground for believing the latter's statement on that subject, and the testimony of Birdsall renders it entirely clear that the relator, on this point, has sworn to what is false. And as he has thus done, in a very material point, he can hardly claim to be credited on any other matter.

The evidence of the servant girls is not of the most credible or creditable kind, to be sure; but it is supported by the confessions, or rather statements, of the relator to Birdsall; and it is not specifically contradicted by the relator, or on his behalf. This evidence shows him to be any thing but a fit custodian for these young children.

Further, it is in evidence that he remains indebted to a large amount, according to the showing of the assignment, and the proof that the assigned property, when properly applied, would not pay more than one-fifth of the debts enumerated in the schedule; and as against this, there is nothing but his general, unsupported statement that he is of ability to take proper care of these children. Any statement he may make requires corroboration; and the fact that he is the keeper of a drinkingsaloon in Chicago, is not the best kind of supporting evidence, any more than it is evidence that the place to which he would take the children is a proper one for their mental or moral training.

It is stated that the relator has now married a second wife, who has two children of her own, and is thus in a condition to take proper care of these young children. Of this wife, the court has this knowledge: that during the pendency of this proceeding, and while the law was the real custodian of the children, she did, in disregard of the action of the court, and to defy its control, by fraud and force possess herself of one of the children. This can hardly be deemed a very high recommendation of her as a fit guardian of their tender years, and certainly does not call upon the court to exercise its authority in her favor, she certainly having neither natural nor legal right to the custody of these children, and probably having no special affection for them. The court should hesitate long before committing them to her.

On the other hand, there seems no room to doubt that the respondent and his wife are really fond of the children, are

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The People on rel. Johnson a. Erbert.

treating them as if they were their own, and are willing, as well as able, to nurture them kindly and bring them up reputably. Indeed, there seems no motive, other than affection for the children, to induce this respondent to have kept them so long, to have assumed by the indentures the obligation to continue the care of them, and to defend this proceeding. And as the children are conceded to be attached to him and his wife, and to be satisfied with their situation, and to prefer not to live with the relator, there seems no reason why the court should interfere with a custody lawfully acquired.

The children are remanded to the care and custody of the respondent.

The relator then obtained a writ of certiorari, to bring the matter before the court at general term for review.

Ira D. Warren, for the relator, insisted-I. That the indentures were void, because the children were not within the "Act to Provide for the Care and Instruction of Idle and Truant Children," under which the commitment and indentures were made.

II. That the gift of the custody of Anna was void as an agreement, and as a delegation of power it was revocable.

III. That the right of a father to the custody of the children is superior to that of any stranger.

Wakeman & Latting, for the defendants.

BY THE COURT.*-SUTHERLAND, J.-We are all of the opinion that the proceedings before the justice on the habeas corpus, and his final order therein, as to the children, should be affirmed, that no sufficient reasons have been shown for reversing the order which he made, in the exercise of a discretionary power.

Order affirmed.

*Present, LEONARD, P. J., CLERKE and SUTHERLAND, JJ.

Savage a. Cock.

SAVAGE a. COCK.

Supreme Court, Second District; General Term, March, 1864. APPEALS FROM JUSTICE'S COURT.-NEW TRIAL.-AMENDMENT OF PLEADINGS.

Where a new trial is had in the County Court on appeal from a justice's judgment, upon an issue of fact, under section 366 of the Code, the parties are restricted to proofs under the issue raised in the justice's court.

Thus, on such a new trial, the County Court have not power to allow the defendant to amend his answer by pleading a new defence.

Appeal from a judgment of the County Court reversing the judgment of a justice's court.

This action, brought by James Savage and another, against Edward Cock, was commenced in a justice's court in Queens county. The complaint was for manure sold and delivered to the defendant. The defendant's answer consisted of a general denial of the allegations of the complaint. The plaintiff obtained judgment against the defendant for $121.70, damages and costs. From this judgment the defendant appealed to the County Court of Queens county. Upon the trial in the County Court, the defendant was allowed to amend his answer, by pleading payment. Judgment was rendered in the County Court in favor of the defendant, and from this the plaintiff appealed to the general term of the Supreme Court.

John J. Armstrong, for the appellants.-I. The County Court erred in allowing the defendant to amend his answer at the trial by interposing a new defence. 1. The appeal is to be heard upon the original papers. (§ 365.) 2. The issue of fact to be tried in the County Court, is the one brought into that court upon appeal. (§ 366, subd. 3 and 4.) 3. The power to amend the pleadings is not conferred upon the County Court, upon the trial of issues of fact on an appeal from the justice's court. 4. The amendment presented a new defence. The power to