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Unformatted text preview: LA Commonwealth v. Nutt 113g 143 (Philadelphia Co. Ct, C. P. 1810) This case arose upon a habeas corpus taken out by Levi Nutt,
the father and directed to Rhoda Nutt, the mother, commanding her
to bring Acha B. Nutt his daughter before the Court, together with the
cause of her detainer. Rhoda Nutt returned that she had the said
Acha before the court, as she was commanded, that she was the
mother of said Acha, that Levi Nutt, the father was an immoral man
and neglected to maintain his family. -— The Case was argued by
Browne for the Father, and S. Levy for the mother. -— As the facts
and the arguments of the counsel are fully stated in the opinion of
the court, it is unnecessary to detail them here. Per Curiam —- Rush President. This Habeas corpus has been
applied for by the father who claims the custody of Acha B. Nutt as
his child. The general opinion is correct, that the father has a right to
the custody of his children. The case in 5 East Rep 221 is full to the
point, and the doctrine had long before settled, as may be seen in 1
Black Corn 453 and 3 Pierre Wms 154. To this general exceptions
have however, been very property admitted: The case of Sir Francis
Delaval is one. From the report of this case, it appears that Sir
Francis, with the assistance of Bates and Frain, an attorney, had got
in his possession, and debauched a young woman of the name of Ann
Catley of the age of seventeen, who had been indented to Bates to
learn music. The Court was satisfied upon the affidavits, that her
father had been wholly negligent of her while she lived with Bates;
that he had never given her advice or reprimand, and that he seldom
or never saw her. They also suspected that he was concerned in the
prosecution to extort money from Sir Francis, who was a man of rank
and fortune. They therefore refused to deliver her to her father.
And with respect to the mother, there being reason to suspect she
was privy to the seduction of her daughter, they refused also to
deliver her to her mother. The result was the Court told the girl she
was at liberty to go where she pleased. The case of the King against
Penelope Smith is to the same purpose; the girl was nearly fourteen
years old, and the Court refused to deliver her to her father, because
they thought his Views in applying for the custody of her were
improper. In the case now before, the Court have been furnished with the
most disgusting evidence of the immoral character and conduct of
both parents. They have quarrelled, broken up house-keeping, and
separated. The children have also been separated and dispersed into
different places. The mother at this time keeps house for Amos
Howell, a tavern—keeper, and married man, who has also parted from LN . his wife. There is too much reason to believe they live in a constant
habit of adultery, and that acts of the grossest indecency have been
exhibited in the presence and View of the daughter. Fiddling,
dancing, and gambling are frequent at the house. This certainly is
not a setting in which . . . innocence can be trusted with safety. With
respect to the father his general neglect to provide for his children is
but too apparent, and he is at this time destitute of a settled
habitation; his profligate language in the presence of his wife and
daughter is too indelicate to be repeated. As the Court cannot deliver
Acha B. Nutt either to her father or mother, they are precisely in the
situation of the court in the case of Ann Catley. But here the analogy
between the two cases must stop. It is not our intention to turn Acha B. Nutt adrift upon the wide
world to her and tell her, as the Court told Ann Catley, “you are at
liberty to go where you please;” but, we mean to put her under the
custody of a relation, where we think she will be best taken care of,
and her mind an morals in the least danger of being corrupted. In
the case of Ann Catley Lord Mansfield stated the law to be, that the
Court is bound to set infants free from any improper restraint but
they are not bound to deliver them over to any body, or to give them
any privilege. These must be left to their discretion, according to the
circumstances that shall appear before them. The Court have received satisfactory information, that Ann
Nutt, sister of Acha B. Nutt, is a person to whose custody Acha may
be safely be confined. They therefore direct, that Acha shall remain
in the custody of her sister Ann, who has consented to take her: and
they do further direct that the said Ann shall permit the father and
mother of Acha, to see her at all reasonable times, and that she shall
also permit them to offer such aid towards her support and
education as they may be able and willing to contributed. We desire
the father and mother to take notice, that it will be at their peril if
they or either of them, shall take away or withdraw Acha B. Nutt
from the custody of her sister Ann, where she is now placed by the
order an authority of the Court, and that every infraction of this
sentence will be punished according to law. $9 ...
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- Spring '08
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