Mercein v. People ex rel. Barry , 1 Lock. Rev. Cas. 240 ( 1799 )

And the decision of the Supreme Court was reversed by a vote of 19 to 3, and a resolution adopted " that the decision of Judge lnglis, upon the question of res adjudicata, was in the opinion of the court, correct, and in conformity to law.”

Various questions were discussed, but not decided, which the reporter has noticed with quaeres! as to each; among others, whether our Court of Chancery has power to restrain a father who is s. foreigner, from removing from this state a child born here, the issue of a mother who is a citizen of this country, without her consent.” All such questions remain for decision under the circumstances of the cases, as they may arise.

See, as to the discretion exercised by courts, in regard to infants, the case “ In the matter of Waldron, 13 J. R. 418, where the Supreme Court held that though the court is bound ex debito justitiae, to set the infant free from improper restraint; yet whether they shall direct the infant to be delivered over to any particular person, rests in their discretion, under the circumstances of the case; and that, although the person making the application be the father of the infant: and in that case, the court refused to direct the infant to be delivered to her father; she being under the protection of her grandfather, and it appearing that it would be more for the benefit of the infant to remain so, than with her father, and no improper restraint being shown.