the people v. merecein II

the people v. merecein II - 1 THE PEOPLE ex rel BARRY v...

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1 THE PEOPLE, ex rel. BARRY, v. MERCEIN. [NO NUMBER IN ORIGINAL] SUPREME COURT OF JUDICATURE OF NEW YORK 3 Hill 399; 1842 N.Y. LEXIS 223 July, 1842, Decided PRIOR HISTORY: [**1] HABEAS corpus ad subjiciendum, issued and returned at the last term of this court. The writ commanded the respondent, Thomas R. Mercein, to bring into court Mary Mercein Barry, an infant child of John A. Barry, the relator; the said child, as alleged, being illegally detained by the respondent, and withheld from the relator's custody. The petition for the writ did not purport to be presented on behalf of the child, but by the relator in his right as father. From the petition and return it appeared that, at the time of awarding the writ, the child was about four years and six months old; that her mother, Eliza Anna Barry, wife of the relator, was a daughter of the respondent; that she, with the respondent's consent and countenance, was living at his house, in a state of voluntary separation from her husband, having the said child with her; that the relator had made repeated applications to his wife and the respondent for the custody of the child, but without success, etc. The marriage between the relator and the said Eliza Anna took place in the spring of 1835, at her father's house in the City of N. Y.; she then being upwards of twenty-five years of age, the relator a British [**2] subject, born in Nova Scotia, where he was engaged in business. Shortly after this event he and his wife proceeded to Nova Scotia, and resided there for a year. They then, at her solicitation, removed to the City of N. Y., at which place he engaged in mercantile pursuits. His N. Y. business proving unfortunate, however, in the winter of 1837, he found himself constrained to relinquish it. Previous to this, two children were born, the issue of the marriage, viz.: a son, now between five and six years old, and a daughter, the child in question. In the spring of 1838 it was arranged between the relator, his wife and the respondent, that she and the two children should stay at the respondent's house, while the relator went to Nova Scotia with a view to reestablishing himself in business there. Nothing like a permanent separation was proposed or contemplated at this time; at least, there was no evidence of such having been the intent either of the relator or his wife. He embarked for Nova Scotia in April, 1838, accompanied by his elder daughters, children of a former marriage; and, after an absence of three or four weeks, he returned, proposing to his wife certain measures preparatory to [**3] their permanent settlement in Nova Scotia. She strongly opposed his views on that subject, and finally told him she never would consent to go, etc.; that he might force her to go by taking her son; but rather than this, she would prefer to part with the relator at once. He expressed himself displeased and disappointed with her conduct; and, after some further conversation, left the respondent's house. Various letters then passed between the relator and his wife respecting their future
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This note was uploaded on 04/08/2008 for the course HIST 327 taught by Professor Hamm during the Spring '08 term at SUNY Albany.

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the people v. merecein II - 1 THE PEOPLE ex rel BARRY v...

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