Nicholls v. Nicholls

3 Duer 642

• Court: The Superior Court of New York City
• Decided: March 25, 1854
• Status: Published

Opinion

The application of the wife, the plaintiff, for a limited divorce had been denied, but the judge, in dismissing the complaint, had ordered her to deliver two infant children of the marriage to her husband, the defendant, to whom he awarded their care and custody. Upon this decree, and upon an affidavit of the defendant stating that he had been unable to discover where the children, or the plaintiff, were, and believed that she concealed them with the design of evading the order of the court, the counsel of the defendant moved that the process of the court might be issued to the sheriff, directing him to take the bodies of the infants wherever they might be found, and deliver them to the defendant. Held, that the court had no power to issue the process prayed for, and that the defendant must seek *’ his remedy by an attachment against the plaintiff, or by a habeas corpus. There was no precedent for such a general search-warrant as was asked for, and it would be contrary to settled principles to grant it. Motion denied.