¶1Let the writ issue.
¶2On this day, Joseph T. Jackson, on whom the habeas corpus was served, brought up the infant, and returned that the infant was placed in his family, and under his protection, by her mother and guardian, Sally Wollstonecraft, and with the approbation of her grandfather, Henry Garrison and it appeared by a document accompanying the return, that Sally W. had been appointed guardian of the person and estate of the infant, by the surrogate of the county of Putnam,, on the 19th of March last. The return being read and filed;
¶3examined the infant touching her situation and wishes ; and thereupon observed, that the object of the court was to release the infant from all improper restraint, and not to try, in this summary way, the question of guardianship, or to deliver the infant over to the custody of another. That the course and practice of the courts in these cases was only to deliver the party from illegal re*83straint; and if competent to form and declare an election, then to allow the infant to go where she pleased, and if the . ° 1 . infant be too young to form a judgment, then the court is to exercise its judgment for the infant. That in the case of Rex v. Johnson, (1 Str. 579. 2 Ld. Raym. 1333. S. C. and 3 Burr. 1436. S. C.) the infant was so young as to have no judgment of her own, and the court delivered the child over to the party suing out the writ; but that case was afterwards overruled in Rex v. Smith, (2 Str. 982. 3 P. Wm. 155 note.) The practice sufficiently appeared from the cases of Rex v. Clarkson, (1 Str. 444.) Ex parte Hopkins, (3 P. Wms. 151.) Rex v. Delaval, (3 Burr. 1434. 2 Cox, 242.) Matter of M‘Dowles, (8 Johns. Rep. 328.) and Matter of Waldron, (13 Johns. Rep. 418.)
¶4The following order was, thereupon, entered:
“ The above named J. JY. W. being brought up before the Chancellor, by Joseph T. Jackson, upon a writ of habeas corpus, heretofore awarded in this case, and being examined, and appearing to be of the age of thirteen years, or thereabouts, and declaring herself to be of that age, and that she was unwilling to be delivered up to Richard Hall, on whose behalf the writ of habeas corpus was awarded, and that she wished to remain under the care, and in the custody of, her ; mother and Joseph T. Jackson, who married her aunt, and under whom she was placed by her mother, and she appearing to be of competent judgment to make a choice, Ordered, that she be restored to the custody of Joseph T. Jackson, and of her mother Sally W.v-