Rex v. De Manneville

Rex v. De Manneville - 1054 THE KING 1 on MANNEVILLE...

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Unformatted text preview: 1054 THE KING 1:. on MANNEVILLE lustin- A Lord Ellenborough C.J., after the argument, said that the Court would look more part ularly into the charters before they delivered their opinion; though it appeared to him ’ery difficult to sustain the defendant’s election by the expedient which had been sug ested. And new his Lordship delivered the judgment of the [219] Court. (After stamig the mode of election of the mayor and bailiffs as prescribed by the charter of Car\ 1, and the manner in which the defendant was in fact elected mayor.) It appears to us reasonable to adopt that construction of the charter which is most agreeable to the natural order and course of proceedings observed in such elections, and which will prevent all difficulties, rather than that, which, unless some degree of management and contrivance is resorted to, would make it impossible to elect other officers: and particularly where the charter, as here, expressly directs that the first mayor should continue till some other burgess should be elected into that office, and the first bailiffs in like manner should continue till two other of the burgesses should be chosen to that office: thereby importing an exclusion of the same mayor and burgcsses from being again immediately elected into the same offices at least. If the new mayor and bailifl's be elected from the hurgesses only, exclusive of the old mayor and bailiffs, (and the mode prescribed by the charter of swearing in the mayor coram predecessore clearly shews that the word burgess must be narrowed in construction to some extent, and so as to exclude the preceding mayor at least,) it will then be immaterial which description of officers is sworn in first. For till the new mayor is sworn in, his predecessor will continue in office, at least for the whole of that day: and till the new bailiffs are sworn in, their predecessors also will be in office. So that if the mayor be sworn in last, he will be sworn before his eeessor and the bailiffs ;' and though such bailiffs be the new ones, it will nevertheless satisfy the terms of the charterzfand though the bailiffs are sworn in first, they [ will be sworn before the old mayorI (which will satisfy the words of the charter,) aTn-d\their predecessors the last bailiffs; This construction would also prevent any questiou\a\s to the validity of a swearing in of the mayor before himself, supposing the words‘\pf the charter, instead of,r/equiring as it has done a swearing in before the whole assembly, one of whom of/éourse must he the person to be sworn, had limited the swearing to: be before a part of the assembly, as for instance, the mayor and bailiffs. We are of opinion, ther ore, that this construction is the proper one to be put upon the terms of this ch ter, and that of course the election stated in the defendant’s plea not being cou- . f mable thereto, was not well made; and therefore that there must in this case be udgment of ouster against the defendant. ' Judgment of ouster. [221] THE KING against DE Maxxsvnma. Saturday, May 12th, 1804. The father of a child is entitled to the custody ofit, though an infant at the breast of its mother : if the Court see no ground to impute any motive to the father injurious to the health or liberty of such a child, as by sending it out of the kingdom; the father being at the time an alien enemy domiciled in this kingdom, and the mother being an Englishwoman, and apprehensive only that he meant to send the child abroad, but assigning no sufficient reason for such her apprehension. [Discussed, If. v. Clarke, 1857, 7 El. &: Bl. 194.] At the beginning of this term a writ of babeas corpus was obtained, directed to the defendant, to bring up the body of an infant of eight months old, the defendant's daughter, upon an affidavit from the mother and her friends that the defendant, who was a Frenchman, had married the mother of the child, an Englishwoman, by whom he had this only child. That she not long after their marriage had separated herself from him on account, as she alleged, of ill treatment, and kept the child whom she was nursing with her. That on the night of the 10th of April last the defendant found means, by force and stratagem, to get into the house where she was, and had forcibly taken the child then at the breast, and carried it away almost naked in an open carriage in inclement weather; with a view, as the mother apprehended, of taking it out of the kingdom. However, when this part of the afidaVit was after. wards more particularly referred to, it appeared that the only ground for such apprehension of the mother was, that the defendant had threatened to carry away the mother to a distance from her friends, and afterwards had threatened to take away .AS'I'. :19. L, ,. ' y ook more . speared '~\ .ch had 3154 Court. bed by the cd mayor.) iii, is most hi .ections, eLd'cgree of clcct other a she first ; lice, and shes should mayor and 15' If the 3 Ll mayor km coram :onstructiou vill then be u nayor is f lat day: use So that the bailiffs ; er—is of the w -n before pg/riecessors the validity the charter, n y, one of E be before 731 opinion, arms of this 5 ‘eing con- t a case be mg i'he father breast of its her injurious i"triom; the l he mother 9, the child iwllirectcd to e defendant’s fendant, who , by whom :ed herself m whom she be defendant "is, and had irked in an “mended, of vit was after- md for such y away the i take away w «ow-ma.-.“ M, Macadam-.. . .1 amass-2. THE KING U. DE MANNEVILLS the child from her, and she was apprehensive that he meant to carry it to some remorse part of the kingdom or to France. Topping now (after the return read. and the child being ready to be produced :m Court when called for) said, that he had affidavits in answer, which he would wax-so reading, if not necessary, to prevent widening the breach between the parents. But he contended that the father was by law entitled to the custody of his child; sand that the only ground upon which the Court had granted the writ, namely, on the supposition that the father had threatened or had otherwise given reason to believe: that he meant to send the child out of the kingdom, was removed upon referring mom: accurately to the terms in which that part of the mother's affidavit was sworn. Anni be referred to the case of Mr. Lytton, which came before this Court on an appliutinm for a habeas corpus in 1781 by the mother to bring up the body of a child who had been placed at school, from whence it had been taken by the father. In that case thcre had been articles of separation, by which the father had bound himself to let time mother have access to the child. And there Lord Mansfield said, that the Court could not at any age take a child from the father. But that as he had constrained himself by the articles to let the mother have access to the child, if he chose to taken the child home, he must provide for the access of the mother to it there. Lord Ellenborongh O.J. observed, that as the ground of removal out of the kingdom was done away, it lay on those who applied for the writ to shew that the father was not entitled to the custody of the child. Erskine, Garrow, and Gibbs, then suggested that the father was now an aiieeu enemy, and therefore the apprehension of the mother that he might carry the chiiid out of the kingdom was not unreasonable, especially as he was liable himself to the sent out of the kingdom under the Alien Act at a moment's warning. That the chiiid [223] being born of an English mother here was entitled to the protection of the lam, and ought not to be exposed to the smallest risk of being removed. That it is of tender age, and considering that its removal from the mother deprived it of itts accustomed proper nutriment was an additional reason for restoring it to her possess- sion, particularly when the father had obtained possession of it by force and strataggm, and in a manner so dangerous to it. Lord EllenborOugh C.J. (stopping Topping, who wished to have his affidavits unzlm the merits read). We draw no inferences to the disadvantage of the father. But ire is the person entitled by law to the custody of his child. If he abuse that right :to the detriment of the child, the Court will protect the child. But there is no pretemne that the child has been injured for want of nurture, or in any other respect. Then be having a legal right to the custody of his child, and not having abused that rigznt, is entitled to have it restored to him. Lawrence J. Since Mr. Lytton’s case, there was another of the same sort upon an application of Sir W’. Murray to obtain possession of a child of five years old, wniich the mother kept from him. Lord Kenyon had no doubt but that the father ‘was entitled to have the custody of the infant, unless the Court saw reason to believe amt he intended to abuse his right by sacrificing the child, which was suggested to be his motive for getting possession of it. In that case Sir “7. Murray had been divorced from the mother, and there was not, as it was alleged, any reason to think the mild his, though born before the [224] divorce. But the Court did not think than a sufficient ground to deny him the custody of it. Per Curiam. Let the child be remanded to the custody of the father (a). End of Easter term. __________________———————-—————————-—-———— (a) Re: against .lfoselcy. Hil. 38 Geo. 3, Friday, Feb. 9th, 1798. If the putattive father of a bastard child obtain possession of it by force or fraud, the Court "will order it to be restored on the application of the mother. Mingay moved for a writ of habeas corpus to the defendant, to bring up the handy of a bastard child of five years old, which a young woman had had by the defendant, and he cited Run: v. Super, 5 Term Rep. 278, as in point; where it was holden that :the putative father had no right to the custody of the child. Lord Kenyon C.J. Take a rule. Where the father has the custody of the mild fairly, I do not know that this Court would take it away from him ; though I do ‘not mean L0 impeach the propriety of the case cited. But where he has got possession: of ’\ x »_ (\n 105-5 ...
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Rex v. De Manneville - 1054 THE KING 1 on MANNEVILLE...

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