
    The State against Peter T. Cheeseman.
    
      Habeas cornoUlie, proper mode for guardian ^ ward, where teen, and chose to remain ^ mother, 
    
    THIS was a writ of habeas corpus directed to the defendant, commanding him, “that the bodv of Joel 7 07 ^ 7 a minor unci or the age of twenty-one years, m Ins custody, &c. he have before the justices, &c, to undergo and receive what the said justices should consider of and concerning him in that behalf.” To this writ, the defendant returned, that he had tlie body of said Clark, who was a boy about * 13 years and 4 months old, the only son of Joel Clark late of the county of Gloucester, dec., who died iti January 1807, intestate, leaving bis widow, the mother of tlie boy; that the defendant married the said widow in December 
      1808; that the boy had lived with the defendant, under the care of his mother, ever since their marriage and had always expressed his wish to remain with his mother, and had never been detained contrary to his own will.
    Upon this return the matter was heard, and it appeared that the prosecutors had been appointed, by the Orphans’ Court of * Gloucester county, guardians ' of said boy, and letters of guardianship in the usual form, in which they are given by surrogates to guardians, were presented to the court. It was also admitted that a demand had been made, by the guardians, to have the boy delivered to them about two years ago, and that the defendant replied, “ take him, but I’ll make you bring him back faster than you take him away.”
    
      Ewing and M’limine for the guardians,
    insisted that in New-Jersey, under the age of fourteen years, the child is considered as having no discretion to choose his guardian or place of residence, and therefore, that the court ought to give him to the person in whose hands the law has placed him. That the statute and the forms of letters of guardianship, direct that the guardian is entitled to the custody of the person of the minor, and that the court would deliver the child to the guardian, even against the will of the child. 8 Mod. 214. 3 Bur. 1436. That this was the only mode jby which the guardian could obtain the child, as this court was the only power that would interfere in the case.
    
      Griffith, for defendant, alleged.
    1.’ That the guardians had taken no care or notice of the child, since it was five years old, but it had, since that time, been kept and educated by the mother, and she ought still to retain it.’ The true rule to be found in the books, was, that the court should exercise its discretion and adjudge whether, under all the circumstances, it was proper to deliver over the child. 2. That the letters of guardianship had been improperly issued and were void, because they ought to have been given to the mother.
    The opinion of the Court was expressed by Southard J.
    
      
       See Mayne vs. Baldwin, 1 Hal. Ch. 454. Valentine vs. Valentine, 4 Hal. Ch. 219. Bennet vs. Bennet, 2 Beas. 114 State, Baird vs. Torrey, 3 C. E. Gr. 194, modified on appeal, 6 C. E. Gr. 384. State vs. Clover,, 1 Har. 419. State vs. Stigall, 2 Zab. 286. Magee vs. Holland, 3 Dutch. 99. What custody of ward testamentary guardian is entitled to. Matter of Van Houten, 2 Gr. Ch. 220. Van Doren vs. Everitt, post 462. And see Graham vs. Houghtalin, 1 Vr. 553. Albert vs. Perry, 1 McC. 540.
      
    
   Southard J.

I consider this question of very considerable importance, under the laws of this state, and - one which in its decision must have extensive and powerful operation upon the interests of society. If this be the proper mode of settling the question of right to the possession of the person of an infant who is under guardianship, there will be a very ready and easy mode of settling those disputes which now exist, and thousands more will be created by the very means which are established for determining them. Nevertheless, if the law require a decision in *favour of these guardians, we must meet the consequences and establish the precedent.

The first inquiry which presses itself upon my mind, is, the right of these guardians to the person of the child. And this I consider complete and perfect: such a right as they would be justified in enforcing, and if resisted, he who should oppose them would lay himself liable to severe chastisement. The nature of the guardianship created by our statute, nay the very relation of guardian and ward gives the right. The principles applicable to this subject, before the enaction of our statute, and the words of that statute, place the guardian in loco parentis; and as the father is entitled to the possession of the person of his child, so is the guardian to that of his ward. It is also manifest to my mind, that no difficulty, in this case, results from the mode of proving the guardianship. The Orphans’ Court which granted the letters which we have before us, is expressly authorised, by the statute, to grant letters of guardianship. It is expressly vested with the power to determine in what cases and to whom the guardianship shall be entrusted; and being a court which has authority, and having exercised that authority, we are bound to regard it as properly exercised, unless when the exercise of the power is fairly brought up and contested, Nay, farther: this court has no right to say that the guardianship was improperly given to these men. The appeal from the decision of the Orphans’ Court, is to a different tribunal.

It is not then, either from the right of a guardian to - the person of his ward, or from any doubt that these applicants really are the guardians and are so to be considered, that any difficulty results in the present case. But it is from the doubt whether the writ of habeas corpus be the proper mode of contesting the rights of these parties, under facts like these. What is this writ of habeas corpus? The writ used, in this case, is the great and efficacious writ, ad subjiciendum, which is directed to a person detaining another, and commanding him to produce the prisoner, with the day &c. 3 Bl. Com. 131. 8 St. Trials 142. It is called a high prerogative writ, and issuing by common law, and running throughout the kingdom, because the king is entitled, at all times, to have an account why the liberty of his subject is restrained. Cro. Jac. 543. It is for the relief of the prisoner, and the prisoner only. It is to inquire why the liberty of the citizen *is restrained. This then is'its legitimate and only object; to relieve from restraint and imprisonment. Wherever there is no imprisonment there is no ground for the writ of habeas corpus. And I apprehend no case has been cited, nor can any one be cited, where this writ is either used to determine a question of property, or the conflicting rights to the possession of the person: it looks to another object altogether. If one of two parties, unlawfully restrain and imprison the person about whom the contest arises, the writ steps in and relieves from the restraint, but leaves the contest, as to possession, to be decided in another mode. This principle is amply maintained in the case of Rex v. Smith, (2 Str. 982.) And if we were permitted to pursue the history of judicial proceedings in England, to a later period, the cases of the King v. Reynolds, 6 T. R. 497, and Rex v. Edwards, 7 T. R. 745, would abundantly confirm the doctrine there advanced. In the first mentioned case the court expressly refused to decide upon the claim of possession to the guardianship, but said it could only deliver the boy out of the custody of his aunt, and tell him to go where he pleased ; that the guardian might maintain his right by other modes of action. I recollect nothing which at all questions the propriety of this decision, unless it be the case cited from 8 Mod. 214, and 3 Bur. 1436. The case in Modern is not very satisfactorily reported there, but is better in other books: and in the case in Burrows, which is indeed a leading and conclusive case, that in Modern, as well as the other cases on this subject, are correctly abridged by lord Mansfield; and the doctrine ho lays down I take to be law. Ho there says. “ In cases of writs of habeas corpus directed to private persons, the court is bound to set the infant free from all improper restraint, and this ex debito justitios, but it is not bound to deliver him over to any body, nor to give him any privilege. This must be left to the discretion of the court under the circumstances.” In the case of Mary Johnson, the court did not even order the child into the possession of the guardian, but permitted him to take her.

When we look into this case, I am free to say that I think the guardians entitled to the infant. They have a right to take possession of it, and the step-father has no right to resist. If he do, ho does it at his peril, and that peril by no means small. But when we inquire why this court, on this writ, should interfere, *1 do not find any imprisoment or restraint, which alone authorises us to interfere, and therefore I am of opinion that no order for delivery of the infant to the guardian should be made; but let the child go where lie will; and let the guardian, if he pleases, either take possession of him, or by course of law enforce his right to the custody of his person.

Rosskll J.

dissented. He thought that the guardians were entitled to the custody of the person of the ward; that the habeas corpus was a proper mode to obtain the possession of his person; and that the circumstances of the case required that the court should order the defendant immediately to deliver the boy to his guardians. 
      
      
         Eldridge vs. Lippencott, Coxe 397. Den. Vanderveere vs. Gaston, 1 Dutch. 615. Acts of 1871, p. 102.
     
      
       But see Tenbrook vs. McColm, 5 Hal. 333, S. C. 7 Hal. 97.
      
     