The People ex rel. Barry v. Mercein

3 Hill. 399 (1842)

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The People ex rel. Barry v. Mercein

New York Supreme Court
3 Hill. 399 (1842)

Facts

John Barry (plaintiff) filed a habeas corpus action to seek an order directing his father-in-law, Thomas R. Mercein (defendant), to produce Barry’s child, Mary Barry. John Barry and his wife, Eliza Anna Barry, had married in 1835. John Barry came from Nova Scotia, and not long after John married Eliza, the couple returned to Nova Scotia for a year. Eliza asked John to move to New York, which he agreed to do, but John ultimately found his business unsuccessful in New York and wanted to return to Nova Scotia. By this time, John and Eliza had two children, Mary and her older brother, Mercein Barry. John and Eliza Barry did not have much domestic harmony because Eliza wanted to live in New York, and John wanted to live in Nova Scotia. In fact, further evidence would indicate that John was hostile and overbearing toward Eliza. In June 1838, John and Eliza Barry and Thomas Mercein signed a contract in which the Barrys agreed that John would take Mercein Barry with him to Nova Scotia, whereas Eliza would keep Mary Barry and reside with Eliza’s father, Thomas Mercein. John Barry returned to New York in early 1839 but again asked Eliza to come to Nova Scotia. After Eliza refused, a lengthy period of custody proceedings began. In early 1841, a judge found that Mary Barry was not being restrained of her liberty by Thomas Mercein and discharged the writ of habeas corpus, finding that Mary did not have to be produced to her father at that time, in part due to Mary’s tender age (just shy of three years old). John began a new round of habeas corpus petitions, one of which resulted in this case. John Barry argued that he could not contract away his rights as a father, that the contract with Eliza Barry and Thomas Mercein was invalid, and that John, as the father of Mary, could and would provide for Mary’s care. Eliza and Thomas Mercein argued that Mary’s youth, illness that required her mother’s care, and even her father’s ill temper meant that Mary must be allowed to remain with her mother and grandfather.

Rule of Law

Issue

Holding and Reasoning (Cowen, J.)

Concurrence (Bronson, J.)

Dissent (Nelson, J.)

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