allow the infant to go where she pleased; and if the infant be too young to form a judgment, then the court is to exercise its judgment for the infant." People v. Chegaray, 18 Wend. 637; Re Gregg, 5 N. Y. Legal Obs. 265. In the latter case Oakley, J., says: "The question as to the alleged superior right of the father can only arise when the child cannot, as in the present case, choose for itself. *** It would seem then that the real question in these cases is not what are the rights of the father and mother to the custody of the child, or whether the right of the one is superior to that of the other, but what are the rights of the child? *** The true view is that the rights of the child are alone to be considered, and those rights clearly are to be protected in the enjoyment of its personal liberty, according to its own choice, if arrived at the age of discretion, and if not, to have its personal safety and interests guarded and secured by the law, acting through the agency of those who are called upon to administer it. Under this provision of the Constitution we are required to give full faith and credit to the judicial proceedings of the courts in the State of Illinois; and if the courts of that State had jurisdiction of the parties and of the subject matter, in the absence of fraud, its judgment is conclusive as between the parties or their privies on all questions litigated and decided in that court. As to those questions, the judgment constitutes an estoppel. Pearce, 12 N. Y. 156; Kinnier v. Kinnier, 45 N. Y. 535; Patrick v. Shaffer, 94 N. Y. 423430; Embury v. Conner, 3 N. Y. 511-522; Kerr v. Hays, 35 N. Y. 331. Dobson v. But it is contended that while the parties may be bound by a prior judgment, the infant children are not, and that it is the duty of the court to determine the question anew, independent of the conclusion reached by the Illinois Court. In the case of Thorndyke v. Rice, 24 Law Rep. 1920, it was held that a decree of a tribunal as to the custody of a child was never final; but that the same tribunal, or another where the child was either temporarily or permanently staying, might consider the case upon the facts then existing, and (looking at the welfare of the child) should determine whether any and what change should be made in regard to its custody. In the case now at bar the eldest child is a girl of nine years, and the others are boys still younger. It seems to me that children of such tender age cannot discreetly choose for themselves; and that in view of the decree of the Illinois Court and the evidence before me, I must recommend the court to award the custody of these children to their mother, until such time as they shall reach years of discretion, when they can choose for themselves; and that the father must be sent to the Court in Illinois for a modification of its order and the determination of the rights between him and this relator, or remitted to his action in chan-setts of the power in its discretion to decree cery. The opinion of the General Term, per HAIGHT, J., was as follows, after stating the facts: The first question which we are called upon to consider upon this appeal pertains to the effect that is to be given to the judgment in the divorce action; for it is undisputed that in that action the court had jurisdiction of the parties; that an issue was raised as to the fitness of the parties to have the care, custody and control of the children, and that the court in that action adjudged that the defendant was not a proper and suitable person to have the custody of the children; that the complainant was a fit and proper person to have their custody and control, and that it would be for the best interests of the children to be given to their mother. It is contended on the part of the respondent that this judgment is conclusive upon the defendant and that he is now estopped from calling it in question; while on the part of the appellant it is contended that the courts of this State are not bound by this judgment, but that it is the duty of the court to now determine the proper person or persons to have the care, custody and control of the children. No claim is made that there has been any change in the circumstances of the parties, or that there have been any new facts discovered since the judgment in the divorce action. Article 4, section 1 of the Constitution of the United States provides that "Full faith and credit shall be given in each State to the public Acts, records and judicial proceedings of every other State." In the case of Woodworth v. Spring, 4 Allen, 321, it was held that the appointment in Massachusetts of a guardian over a child whose legal domicil is in another State, who has a guardian appointed under the laws of that State, does not deprive the court of Massachu the custody of the child to a foreign guardian. In the case of Williams v. Williams, 13 Ind. 523, it was held that where, upon granting a divorce, the court, in its judgment, assigns the custody of the child to one of the parties, such disposition of the child will control until the judgment making it is modified by the court upon proper application, and cannot be disregarded in a subsequent proceeding by habeas corpus to obtain possession of the child. In the case of Wilkinson v. Deming, 80 Ill. 342, it was held that where the divorce had been granted for the fault of the husband, giving the custody of the children absolutely to the mother, it takes away ipso facto all control of the father over the children until it is restored by the action of the proper court. In the case of Miner v. Miner, 11 Ill. 43, it was held that in case of separation the father has the legal right to the custody and control of his children, unless he had forfeited it by misconduct; next to the right of the father, that of the mother must be recognized, but these rights are subject to the control of the court of chancery, and when its aid is invoked the best interests of the children should be primarily considered; the paramount right of the father to the children will not be recognized where a divorce has been granted for his fault or misconduct; when the aid of the court is once invoked to provide for the guardianship of infants in case of separation of the parents, such infants become the wards of the court, and it will not permit them to be removed beyond its jurisdiction. 6 In the case of Wakefield v. Ives, 35 Iowa, 623 238, it was held that where a decree of divorce of a court of general jurisdiction in any other State is regularly rendered, although on service by publication, giving the custody of a minor child to the applicant, such decree will be regarded as binding and conclusive upon the parties until reversed, modified or set aside for cause shown to the jurisdiction. In the case of Kline v. Kline, 57 Iowa, 386, it was held that a decree of divorce rendered in another State on service by publication so far as it attempted to fix the custody of minor children who were then residents of the State of Iowa, is without jurisdiction and void. In the Matter of the Petition of Frank B. Bort, 25 Kan. 308, for a writ of habeas corpus, it was held that it was the duty of the court, whenever the possession and custody of a minor child is sought by habeas corpus, to make such order for their care and custody as the best interests of the children may require; and to that end it may commit them to the custody of other than a parent; and this, notwithstanding the fact that in a decree of divorce they were committed to the care and custody of their father or mother; that such decree may bind the parties inter sese, but does not conclude the court as to the best interests of the children. We have thus briefly called attention to such authorities as we have been able to find that bear upon the question under consideration. It will be observed that in the case of Thorndyke v. Rice, supra, the decree of a tribunal as to the custody of a child was never considered final, but that the same tribunal, or any other, might consider the question upon the facts then existing, looking at the welfare of the child. This decision proceeds upon the theory that the circumstances of parties to whom the custody of children may have been awarded may change, rendering it fit and proper that the court should change the custody of the children. We do not, however, understand the court in this case to have gone to the extent of holding that it was the duty of the court to go back of the former decree and try over and determine anew the facts established by that decree. In the case of Woodworth v. Spring, 4 Allen, 321, the question pertained to the rights of guardians, and its chief bearing upon the question under consideration lies in the fact that a judgment of another State becomes an important element in determining to whom the custody of the children should be awarded. The cases in Indiana and Illinois, to which we have referred, appear to go to the extent of holding that a judgment once fixing the custody of children becomes binding upon the parties so long as that judgment remains in force unmodified. court rendered a decree of divorce to the plaintiff, and awarded her the care and custody of Alice H. Ives, an infant daughter. The defendant having obtained custody of the infant in the State of Iowa, a writ of habeas corpus was sued out by the mother. It was held that the District Court of Minnesota, by which the decree was pronounced, being a court of general jurisdiction, was by the statute expressly clothed with the power to grant the divorce and make the order respecting the care and custody of the child; that she was within the jurisdiction of the court at the time the decree was rendered; that the decree was regularly obtained and still remains in full force and binding upon the parties to it; that under the Constitution of the United States, full faith and credit shall be given to it in the State of Iowa; that it is binding and conclusive upon the parties until it is modified, reversed or set aside, and that the mother was entitled to the custody of the child. In the case of Kline v. Kline, 57 Iowa, 386, a different result was reached, and that upon the ground that the children did not reside in the State in which the action of divorce was granted, which attempted by its decree to fix the custody of the children. The decision in that case, however, proceeded upon the theory that the children being nonresidents of the State, the court had no jurisdiction over them, and is clearly distinguishable in that regard. In the Matter of Frank B. Bort, 25 Kan. 308, the parents were divorced by a decree of the Circuit Court of Sauk County, Wisconsin. The decree awarded the custody of the children to the father. The mother, having taken the children to Leavenworth, Kansas, to reside with her parents, the father procured a writ of habeas corpus to be issued seeking to recover the possession of the children. The petitioner invoked the decree of the court of Wisconsin and the clause of the Federal Constitution to which we have referred; but the court refused to award him the custody of the children, but instead awarded them to a Mrs. Powers, a grandmother of the children. The court, in delivering its opinion, seemed to be of the impression that the Constitution referred to had reference to property rights, and that it had no application for the reason that parents had no property rights in the possession of their children, but it refused to place its decision upon that ground; on the contrary, for the purpose of the decision, it conceded as between the parents the decision of the Wisconsin Court was final. The court then proceeds to state reasons why it would be for the best interests of the children to be awarded to their grandmother and not to either of the parents. It will thus be observed that, from a careful And to the same effect is the case of Wakefield examination of the authorities to which we v. Ives, 35 Iowa, 238. In this case it appears have referred, there is no substantial conflict. that Mary Wakefield Ives brought an action for We cannot adopt the intimation suggested divorce against her husband in the District in the Bort Case: that the Federal ConstituCourt of Hennepin County, Minnesota, where tion had reference to property interests only, she then resided; that a summons was issued and that full faith and credit was to be given to against the defendant and served by publication, the judgment of the courts of other States the defendant's residence being unknown. The only in cases where the judgment affected propservice of the summons having become com- erty rights. No such limitation appears in the plete by publication, a default was entered Constitution, and we do not believe that any against the defendant, and the case sent to a such was intended. If it was, then a decree referee to take the testimony and report to the of divorce dissolving the marriage contract becourt; that upon the testimony so reported thetween a husband and wife residing in the State in which the decree was issued, the parties being subject to the jurisdiction of the courts of that State, would be of no binding force or effect in either of the other States of the Union, for the reason that the decree did not pertain to property and consequently would not be entitled to full faith and credit under the Constitution. and allowed them to go ragged and dirty; that her father, years ago, used to be a man of wealth and standing, but that fifteen or sixteen years ago he was arrested at the instance of the government, charged with having defrauded the government in the manufacture of whisky, and had his property confiscated, and that because of that he was no longer regarded as a man of good character. To our mind the Constitution covers the question under consideration, and it is our duty The referee, however, evidently believed the to give full faith and credit to the decree of the testimony of the relator and her sister, and has Illinois Court. We do not, however, regard found as a fact that she was a fit and proper the decree of that court as binding upon the in-person for the custody of the children; that fants, but it is binding upon the parents, the their surroundings would be wholesome if parties to the action. The infants at the time, given into the custody of their mother and rebeing of such tender years as to be unable to moved to the house of her father. He evidently choose for themselves as to their custodian, be- took into consideration the fact that the appelcame the wards of the court, and it was the lant was born and brought up in the City of duty of the court to choose for them. The Rochester; that his mother, two brothers and court, in choosing for them, was required to three sisters still reside there; that he was consider the best interests and welfare of the surrounded by his relatives and friends, and children. Its decision became binding upon that the relator had been compelled to follow the children only for the time being; and as her children from the State of Illinois, where soon as the circumstances of the custodian they were born and reared, and where all of her changed or other circumstances arose which own relatives and friends resided, to the City would make it for the best interests of the of Rochester, among strangers, accompanied children that there should be a change, it would only by her sister. be the duty of the court in which the decree was originally made, or of any other court having jurisdiction, to make such change. But as between the parties to the action, the parents of the children, they are bound by the matters adjudged and determined in the action, and cannot again retry the questions therein determined. In the case under consideration, the question is narrowed to a contest between the father and mother for the possession of the children. They are of that age that they cannot choose for themselves. The father was a party to the divorce action, duly served with a summons, and had an opportunity to defend. Instead, he had violated the decree of the court, was adjudged guilty of contempt, and thereby forfeited his right to defend the action. The decree, nevertheless, is binding upon him, and had the same force and effect as if he had defended. It was adjudged upon the issues raised by the plead ings in the action that he is an unfit and improper person to have the custody and control of the children. That judgment is binding upon him, and full faith and credit must be given to it. He surreptitiously, and without the consent of the mother, removed the children from that State into this State. If the judgment of the Illinois Court is not binding upon him, the judgment of this court would not be in any other State of the Union. If, therefore, he should again surreptitiously remove the children to another State, she might again be compelled to litigate the same question in any State to which he saw fit to remove them. Such a rule would be unreasonable and unjust and, we think, ought not to prevail. Upon the merits the relator's claim stands upon the testimony of herself and her sister, who has accompained her here from Chicago. As against them, there is voluminous evidence tending to show that the appellant is an educated man of good moral character, and a proper and fit person to have the care, custody and control of the children; that she was not a fit and proper person; that she had neglected them We have carefully read the entire evidence appearing in the appeal book, and we have discovered no reason why we should differ with the referee in the conclusion reached by him as to the facts. We are, therefore, of the opinion that the order should be affirmed, both upon the law and the facts, with costs. Mr. Theodore Bacon, for appellant: "The welfare of the children, and not the technical legal right, is the criterion by which to determine to whom the custody of the child shall be awarded." Hurd, Habeas Corpus, § 462; Re Gregg, 5 N. Y. Legal Obs. 265, 267; People v. Brown, 35 Hun,324; Re Maurer, 18 N. Y. Week Dig.568. Upon this question the Illinois decree not only is not conclusive, but it does not even profess to pass upon it; still further, the question was not before the court to be passed upon; and further yet, if the question had been before the court, and the court had assumed to pass upon it, its judgment could not have concluded the persons who are the subject of it who were infinitely more interested in its determination than all the world besides, and who nevertheless were not parties to the decree. The utmost extent to which, even in the State of New York, the courts have ever gone in holding that the question of custody of a child is not always open for determination, is where a determination has been had upon direct proceedings by habeas corpus to determine that question, proceedings in which the child itself is both constructively and actually in court, and its rights and welfare are the sole subject for consideration. And then only while the material facts relating to the circumstances of the parties remain unchanged. People v. Mercein, 3 Hill, 399. The present case, however, is not only not one in which the Illinois decree pretended to pass upon the welfare of the children; it is not one in which any Illinois Court had any jurisdiction to pass upon the welfare of the children. That the court of first instance wholly | ignored the real issue for its determination, the welfare of the children, sufficiently appears from the referee's express statement that he has "not personally examined the said children, or inquired with whom they desire to live." "The welfare of the child, then, being the object to be attained, no consideration calculated to influence the decision of the question should be overlooked; hence, the wishes of the child are consulted, not because it has a legal right to demand it, but because it is material for the court to understand them, that it may be the better prepared to exercise its discretion wisely. It is not the whim or caprice of the child which the court respects, but its feelings, its attachments, its reasonable preferences, and its probable contentment.' Hurd, Habeas Corpus, p. 529; Re McDowles, 8 Johns. 328; People v. Chegaray, 18 Wend. 637; People v. Pillow, 1 Sandf. 672; Re Doyle, Clarke, Ch. 154; People v. Weissenbuch, 60 N.Y. 385; Re Wollstonecraft, 4 Johns. Ch. 80. Upon this issue, the burden is upon the relator to show that, for whatever reason, the existing custody of the child ought to be changed. Thorndyke v. Rice, 24 Law Rep. 19. The Illinois judgment in nowise determined this issue. 1. The children were not in Illinois, but were lawfully in New York, and under the protection of New York laws, equally with those born here. Lemmon v. People, 20 N. Y. 563, 602-608; Woodworth v. Spring, 4 Allen, 321, 323. 2. The children were not parties to the Illinois action or in privity with either party. 3. The judgment did not pretend to adjudicate upon the welfare of the children, but only upon the rights of the parents. 4. Even an adjudication as to what their welfare required, in November, 1884, in Pekin, Illinois, would not determine what their welfare required in November, 1885 (still less in March, 1887), in Rochester, New York. The question, What is for the children's welfare? circumstances having changed, is always open. Thorndyke v. Rice, 24 Law Rep. 19. The courts in America and in England have repeatedly upheld the welfare of the children against the rights of others to the children, however fixed by covenant or by judgment. Re Besant, L. R. 11 Ch. Div. 508; People v. Erbert, 17 Abb. Pr. 395; Woodworth v. Spring, 4 Allen, 321; Thorndyke v. Rice, 24 Law Rep. 19; Kline v. Kline, 57 Iowa, 386. Mr. John M. Davy, for respondent: Article 4, section 1, of the Constitution of the United States provides that: "Full faith and credit shall be given in each State to public Acts, records and proceedings of every other State; and Congress may by general laws prescribe the manner in which such Acts, records and proceedings shall be proved and the effect thereof." Congress has exercised that power, and in effect has provided that the judicial records in one State shall be proved in the tribunals of any other, by the attestation of the clerk under the seal of the court, with the certificate of the judge that the attestation is in due form. Second: "That such records so authenticated shall have such faith and credit given to them in every other court in the United States as they have by law and usage in the courts of the State from whence the said records were or shall be taken." Hampton v. McConnell, 3 Wheat. 234 (16 U. S. bk. 4, L. ed. 378); Kinnier v. Kinnier, 45 N. Y. 544. The courts of this State have repeatedly held that a judgment or decree of a court of a sister State possessing competent jurisdiction is final, not only as to the subject thereby determined, but as to every other matter which the parties might have litigated in the case, and which they might have had decided, and that the judgment can only be impeached on the ground of fraud or want of jurisdiction. Dobson v. Pearce, 12 N. Y. 156; Embury v. Conner, 3 N. Y. 522; Kinnier v. Kinnier, 45 N. Y. 540; Ruger v. Heckel, 85 N. Y. 483; Kamp v. Kamp, 59 N. Y. 213, 216; Price v. Price, 55 N. Y. 656; Patrick v. Shaffer, 94 N. Y. 430. The petitioner has a constitutional right to have the same effect given to the Illinois decree by the courts of this State that would be given to it in that State, if she had there instituted similar proceedings by habeas corpus to obtain the custody of her children. Chew v. Brumagen, 13 Wall. 663 (80 U. S. bk. 20, L. ed. 663). The Court of Illinois had the legal right, under the laws of that State, to award the custody of the children to the mother when it granted the divorce. Wilkinson v. Deming, 80 Ill. 342; Miner v. Miner, 11 Ill. 40; Burge v. Burge, 88 Ill. 164; R. S. of Ill. chap. 40 18. The Illinois decree has not been reversed or modified by the courts of that State. The decree, therefore, should be treated as res judicata. Barber v. Barber, 21 How. 582 (62 U. S. bk. 16, L. ed. 226); Wakefield v. Ives, 35 Iowa, 240. The Illinois, Ohio and Indiana Courts have held that where a divorce is granted the court in its judgment may assign the custody of the minor children to one of the parties; and such disposition of the children is binding between the parties and will control until the judgment is modified, upon a proper application to the court having jurisdiction, and that such judgment cannot be disregarded in a subsequent proceeding by habeas corpus to obtain possession of the children. Hoffman v. Hoffman, 15 Ohio, 427; Williams v. Williams, 13 Ind. 528; Miner v. Miner, 11 Ill. 43. The question as to the mother not being a proper person to have the custody of the children, was tried and decided in the divorce action; and that question must be regarded as settled and disposed of in accordance with the well settled principle of law that where it appears, as it clearly does by the records in that case, that the identical questions involved have been tried and passed upon, it is an estoppel which concludes the defendant in this proceeding. Kerr v. Hays, 35 N. Y. 331; Patrick v. Shaffer, 94 N. Y. 430; Wilder v. Case, 16 Wend. 583; Cromwell v. County of Sac, 94 U. S. 351, 352 (Bk. 24, L. ed. 195); Peck v. Callaghan, 95 N. Y. 73; Krekeler v. Ritter, 62 N. Y. 372. Per Curiam: We dismiss this appeal for the reason that the courts below, upon a view of all the existing facts relating to the welfare and interests of the infants, exercised their discretion in awarding to the mother the custody of the children; and, in so doing, gave to the Illinois decree not the force of an estoppel, or the conclusive effect sometimes due to a judgment, but simply regarded it as a fact or circumstance bearing upon the discretion to be exercised, without dictating or controlling it. Appeal dismissed, with costs. All concur. and then only for the actual amount received J. D. Grafton, Act'g Paymaster Gen❜l. Governor of Mo. "S. Tunicliff." By the Act of the Legislature of Missouri, approved March 19, 1874, it was provided, among other things, as follows: Sec. 10. That, for the purpose of settling the claims of officers of the enrolled Missouri militia and Missouri militia for services rendered during the war, the acting paymaster general is hereby authorized to examine the claims of all officers and soldiers whose names appear as not paid, on the record of unpaid claims on file in his office; and if he finds such claims correct and just he shall allow the same and indorse said allowance on said claim; and PEOPLE of the State of New York, Respts., if not correct he shall indorse such fact on the V. Emil H. BRIE, Appt. 1. An Act of the State of Missouri pro- (Decided March 8, 1887.) claims and return the same for correction; Provided, however, That whenever a person is reported on the record of unpaid claims as absent without leave, the acting paymaster general shall not audit and allow said claim until he has presented sufficient proof that he was not absent without leave or had not deserted. Sec. 13. That the duplicate of all claims passed upon by the acting paymaster general shall be filed in his office-those rejected with the cause of their rejection, and those allowed with the amount allowed thereon; and the originals of all claims, with the indorsement of their allowance or rejection, shall be returned to the party filing the same; and on presentation of the original of any claim allowed as aforesaid to the acting paymaster general, he shall issue a certificate of state indebtedness for the amount allowed thereon, which certificate shall be signed by the Governor and countersigned by the acting paymaster general, and shall read as follows: No. It is hereby certified that the State of Misin the sum of souri is indebted to on account of services in company Regiment. This certificate is not payable by the State until after the claim of said for his services has been presented to the United States Government and the amount allowed and paid to received from the United States Government. City of Jefferson, Missouri, APPEAL from a judgment of the Supreme the State, and then only for the actual amount Court at General Term in the First Department, affirming a judgment of the Court of General Sessions on conviction of defendant under an indictment for forgery. Affirmed. The defendant was convicted of uttering a forged certificate under an indictment drawn in pursuance of part 4, article 3, section 32 of the Revised Statutes. The certificate so uttered was as follows: No. 2676. $347 10 6 It is hereby certified that the State of Missouri is indebted to Sanford Tunicliff in the sum of $347.16, on account of services in Co. B, 5th Regiment, E. M. M. This certificate is not payable by the State until after the claim of said Sanford Tunicliff for his services has been presented to the United States Government, and the amount allowed and paid to the State, Countersigned: Governor of Missouri. 18 Acting Quartermaster General of Missouri. On appeal by defendant to the general term, the judgment and conviction was affirmed in the prevailing opinion delivered by DANIELS, J., as follows: The certificate, for the uttering of which the defendant was convicted, was dated in August, 1874. It was issued under a law of the State of Missouri, enacted on the 7th of January of the same year, and it obligated the State of Missouri to pay the sum of $347.16, on account of services in Company B, Fifth Regiment of the Enrolled Missouri Militia, after the claim of the person therein named for his services |