. The principal objection to the validity of the orders and decree in question is, that they are not made in a proceeding in the court of-chancery in which that.court had jurisdiction of the respondents.
An examination of the petition for the writ of habeas corpus exhibits that it was an application for the appropriate use of that writ, to wit, to free the infant children of Mrs. Slack-from the alleged illegal restraint of Lewis Perrine. -. It did not invoke the exercise of the gitasi-paternal jurisdiction of the court of chancery over the welfare of the' infants.
I 'apprehend that such an application, was properly made to a vice-chancellor in virtue of the supplement of May 9th, 1889 (P. L. of 1889 p. 426), to the Habeas Corpus act, which provides, using its language, that
*292 “ vice-chancellors, or either of them, shall have the same jurisdiction, power and authority to grant all writs of habeas corpus, and to hear and determine the same, that the chancellor of this state now has, and that he and they shall proceed in the same manner.”
The power of the chancellor to issue writs of habeas corpus now is, and when that supplement was enacted was, co-extensive with the power exercised by the justices of the supreme court. Baird v. Baird, 4 C. E Gr. 481; P. L. of 1878 p. 370.
As the writ is not a prerogative writ of a court whose jurisdiction, in respect of it, is preserved and protected by the constitution, the legislative power to extend its use to the vice-chancellors does not appear to be questionable.
The office of the writ, as already intimated, is to secure the production of the body of one restrained, in order that it may be freed from illegal restraint, and the matter presented for determination by the tribunal using the writ is the legality or illegality of the restraint complained of.
Incident to release from illegal restraint, for the purpose of making the release safe and effectual, the court will sometimes go beyond the mere removal of unlawful restraint and transfer the body brought before it by the writ into the custody of him who has the clear legal right, but this is the limit of the award of custody under the writ. Baird v. Baird, supra. The jurisdiction thus defined is widely distinguishable from the jurisdiction of the chancellor, as parens patries, to award the permanent custody of an infant, and it does not follow, from the fact that the chancellor sometimes uses the writ of habeas corpus as the means of bringing parties before him, in order that he may effectually exercise the latter jurisdiction, that the legislative award of the power to the vice-chancellors to use the writ of habeas corpus evinces an intent that the chancellor’s equitable jurisdiction shall follow. The statute does not expressly declare a purpose to clothe the vice-chancellors with the chancellor’s qwasi-paternal jurisdiction in disposing of the custody of infants, and such a purpose cannot be implied from the language of the act without the aid of the untenable assumption that the chan*293cellor’s jurisdiction over the custody of infants is an indissoluble adjunct of the writ of habeas corpus in his hands.
In People v. Mercein, 8 Paige 55, Chancellor Walworth, speaking as to the propriety of the use of the writ in the exercise of the chancellor’s jurisdiction, said: “A writ of habeas corpus ad subjiciendum, however, is not, either by the common law or under the provisions of the revised statutes, the proper mode of instituting a proceeding to try the legal right of a party to the guardianship of an infant. This court, therefore, upon such a writ, will exercise its discretion in disposing of the custody of the infant upon the same principles which regulate the exercise of a similar discretion by other courts and officers who are authorized to allow the writ in similar cases.”
In Baird v. Baird, Chief-Justice Beasley states the practice in this way: “If the simple purpose was to free from illegal restraint, the proceeding was either in the law courts or in chancery, by the instrumentality of the habeas corpus, and in such proceeding a court had no power to make any order which was not within the competency of a law judge. But, on the other hand, when the object was to fix the status of a minor with regard to permanent custody or guardianship, and to settle, for any course of time, the rights of contending parties to such custody, then the application was to the chancellor, by virtue of his general superintendency over the concerns of infants. The proceeding, then, was by petition to him as parens patries. This distinction between the chancellor’s jurisdiction over infants by habeas corpus and as wards of the court is clearly marked in the practice and has been often noted by the court.” It was held in that case that the pleadings, proofs and decree evinced that the court of chancery acted under its general superintendency over the affairs of infants as distinguishable from its more limited jurisdiction in proceedings by habeas corpus.
Again, in English v. English, 5 Stew. Eq. 738, the proceeding in chancery was by petition for a writ of habeas corpus, which alleged facts to invoke the exercise of the court’s jurisdiction over the welfare of infants, and the return put that matter in issue. Mr. Justice Knapp,'in writing the opinion of the court *294of errors and1-appeals, said: “The jurisdiction’of the-court of chancery to settle arid dispose of the care and custody , of infants through proceedings like this is established. .The parties, in their litigation have, by their pleadings and proofs, presented issues» within the-cognizance of that court, under its general jurisdiction as public guardian of the rights and interests of infantsiSuch jurisdiction is not, by the use of the writ of habeas corpus to bring the infants into court, cut down and restricted to those limits which outline and bound a strict proceeding on habeas corpus. The writ serves a purpose merely ancillary to the more 'general design of the suit to secure a definite disposition of therti aS-wards of the court Baird v. Baird, 4 C. E. Gr. 482.
And again, in the same court, in Richards v. Collins, 18 Stew. Eq. 283, where a- writ of habeas corpus was used in chancery upon-petition to the chancellor for disposition of ’the custody of »an infant,- the-same judge said : “The court may stop with the mere removal of restraint, or, in its discretion, may go further and determine for the time being the custody of the subject of the writ. But the court of chancery exercises a far1 more extended control-in respect to the right of custody of .children in virtue of an inherent jurisdiction over that subject. In the exercise of this higher, authority that-court may permanently fix'the status of infants-'even in disregard of the legal rights of prirents, -where the welfare of the infants requires it. Nor is it material 4o the exercise of this power in what way the subject is brought into 'court. In Baird v. Baird the petition was to the chancellor as one of the judicial officers authorized by statute to issue the writ, arid not to him in the exercise of the more general jurisdiction of the court of chancery. But the return to the writ and the answer to the return filed by the petitioner presented a case for the cognizance of the court in its more general jurisdiction. The chancellor doubted whether, im the proceeding, the general powers of the court-of equity were invoked, yet, on appeal, the court of errors declared that, when an issue is' made by the pleadings and proofs on the question of the right to the permanent custody of infants, the case addresses itself to the general authority of equity' as • the public guardiari of infants. It becomes *295necessary in this case to determine in which of these aspects it stands before the court. In my opinion, the pleadings present a controversy such as addressed itself to the general equitable powers of the court.”
Thus it is made clear that the chancery jurisdiction over the welfare and consequent custody of infants is entirely independent of its limited jurisdiction by habeas corpus, and that the former jurisdiction is invoked by pleadings presenting facts which demand its exercise, and that when the writ of habeas corpus is used in connection with its exercise, it renders only an ancillary service.
It follows that a statute which confers upon the vice-chancellors merely the same power to issue writs of habeas corpus and hear and determine them that the chancellor has, cannot be construed to confer upon them the jurisdiction'of the court of chancery over the well-being of infants. Taking this view of the construction of the statute, it is unnecessary to question the power of the legislature, under the constitution, to effect such a purpose.
. Prior to the order of reference the proceeding considered was before Vice-Chancellor Bird, acting under the statute, and not in the court of chancery. And the proceeding evidently was not intended by the vice-chancellor to be in the court of chancery. It is true the papers were filed with the clerk of the court of chancery, and the writ was sealed with the court’s seal and signed by the chancery clerk, and the papers were entitled as in a cause in the court of chancery, but it nowhere appears that any of those acts were done by the knowledge or with the permission of the court of chancery. The statute provides that a vice-chancellor issuing a writ of habeas corpus, and hearing and determining it, shall proceed “ in the same manner” as the chancellor does upon habeas corpus, and I think it is evident, upon inspection of the papers in this proceeding, that the design was not to institute a suit in the court of chancery, when the original petition was presented, but to proceed before the vice-chancellor under the statute, as nearly like a similar proceeding before the chancellor as possible. The only judicial power invoked, prior *296to the application for the order of reference, was “John T. Bird, Vice-Chancellor of the State of New Jersey.”
It is remembered that, by article 6, section 4, placitum 1 of the constitution of the State of New Jersey, the court of chancery is made to consist of “ a chancellor,” and that within the last half century the business of that court has so outgrown the capacity of a single man that the legislature has created advisers of the chancellor, called “ vice-chancellors,” who, under orders made for that purpose by the chancellor, in his stead, hear matters pending in the court of chancery, and advise him what' orders and decrees should be made in them, and that while their advised orders and decrees are not necessarily accepted and signed by the chancellor, yet, because of their great number, to facilitate the dispatch of the court’s business, in absence of objection, it is the practice of the chancellor to sign them without questioning their correctness, and thereby make them the orders and decrees of the court. The action of the chancellor is thus needed to give effect to the acts of the vice-chancellors as proceedings in the court of chancery.
Now, it is observed that, after the petition was presented to Vice-Chancellor Bird and a writ of habeas corpus was allowed, the time for the return ,of the writ, by consent of the solicitors of both parties, was extended and Mrs. Perrine was made a party respondent, so that an issue as to the permanent custody of the infants might be raised, and later, that Mrs. Perrine, by her answer to the petition, insisted that, as guardian appointed by the will of the father of the children, she was entitled to their custody and could not be disturbed in it except for the benefit of the infants, and then proceeded to raise an issue as to the disposition of the infants according to their welfare, by alleging that, in fact, their mother was not a fit and proper person to have the care of girls of tender years, and that the interest of the infants lay in their continuance in custody of herself, the respondent, and that later, Mrs. Slack became a party petitioner, and, accepting the equitable issue tendered, replied to the answer of Mrs. Perrine, traversing the allegations as to her unfitness to have thr custody of her children, and alleging that it was not to the interest *297of the infants to remain in the custody of Mrs. Perrine, but was to their interest to be restored to the custody of their mother. Thus, by the pleadings, an issue cognizable by the court of chancery alone was presented. The case having taken this shape, it became desirable to transfer it to the court of chancery. Such was the situation when the counsel for the petitioners applied to the chancellor, ex parte, and obtained an order which treated the matter as one pending in the court of chancery, and, as such, referred it to Vice-Chancellor Bird to hear for the chancellor. I do not doubt that if the parties had, with knowledge of the order of reference, voluntarily proceeded to try the issues before Vice-Chancellor Bird, as an advisory officer of this court, they would have been fully within the court’s jurisdiction. Baird v. Baird, supra. The difficulty encountered is that the respondents did not so proceed. The next steps in the matter were the withdrawal of their counsel from the case and the immediate procedure of the vice-chancellor, under the urgency of the petitioners’ counsel, to hear the case ex parte and advise the orders and decree complained of, as in a proceeding pending in this court.
For aught that appears to the contrary, the respondents were in utter ignorance of the order of reference. They had no notice of the application for it. They did not, after it was made, in any manner assent to proceed in chancery under it. They have never been brought into the court of chancery by notice or process of any kind. The court had jurisdiction of the issues between the parties, it is true, and its order of reference expressed its willingness to proceed with the determination of those issues, but the order was had without the assent of the respondents, and did not give the court of chancery jurisdiction over them. The court lacked jurisdiction of those parties, which, beyond all question, was necessaiy to the validity of the orders and decree complained of. In absence of it, the orders and decree must be held to be without force, and for that reason, so far as they purport to be proceedings of this court, they will be set aside.
The motion must prevail.