People ex rel. Allen v. Burtnett

The relator has established that William Allen, her son, was a minor, over the ■ age of eighteen and *116under twenty-one years, and enlisted without the consent of either of his parents. It appears from the return to the writ that on the 15th of August, 1861, he enlisted as a private soldier, in the Governor Morgan United States light artillery, and was in due form of law, mustered into the service of the United States, as such private soldier. It further appears that on the 13th of September, 1861, an application for habeas corpus, was made to Mr. Justice Barnard, of the Supreme Court of this district, upon an affidavit sworn to on that day, that the deponent had made inquiries in Richmond county, for a magistrate of competent jurisdiction, to grant the writ of habeas corpus, and that he could find none, the county judge being absent from said county and gone to the western part of the State of Hew York.

The petition in that case stated that the party was deprived of his liberty, at camp Law, Richmond county. The petition in the present instance, states the same fact.

It further appears from the return, that Mr. Justice Barnard, on the 16th of September, 1861, inquired into the facts; that the fact of minority was ascertained, and of enlistment without consent. He decided that the party was not entitled to his discharge, and remanded him. to the custody of the officer, who now produces him. Several objections are made to the discharge being granted. By the statute (3 R. S., 5th ed., 883, §§ 37,38 ; 2 R. S., 563), application for the writ may be made to the Supreme Court during its sitting, or during its term or vacation, to any one of its justices, or any officer who may be authorized to perform the duties of a justice of the Supreme Court, at chambers, being or residing within the county where the prisoner is detained; or if there be no such officer within such county, or if he be absent, or for any cause be incapable of acting, or have refused to grant such writ, then to some officer having such authority, residing in any adjoining county. There must, in such case, be sufficient evidence given that there is no officer in the county of the detention authorized to grant the writ, or that he is absent, or has refused *117to grant it, or is incapable of acting for some cause specially set fourth.

The affidavit produced is liable to the objection that it does not explicitly state that there is no officer in the county, other than the county judge, authorized to grant the writ, only that the deponent could find none.

It is subject, also, to the difficulty that it was made on the 13th of September, and used on the 16th of that month; before Justice Barnard. On the same day, the 16th, the present application was made. The county j udge might have returned in the interim. An affidavit of a later date should have been produced.

I think these objections well taken. It is next insisted that the decision of Mr. Justice Barnard is res judicata upon the same facts in the same case, and the only mode of correcting it, if wrong, is by certiorari.

The case of Mercein v. The People, in the Court of Errors, (25 Wend. R., 64; see p. 106,) is a distinct authority to the very point, and has remained unchanged. (See 1 Parle. Cr. R., 129.)

This objection is fatal to the application. Another point has been raised as to whether the party is not so brought within the act of our own legislature as to make his enlistment valid, being over eighteen years of age, without the consent of his parents.

Upon this question the act of the militia (1 R. S., 285), the 21st section of article one, title five (Id., 296), and the act of April 15, 1861 (Sess. Laws, ch. 277), may be referred to, as also the 12th section of the act, chapter 304, of 1835. I need not pass upon this point.

The application must be denied, and the prisoner remanded to the custody of the officer making the return.