Ex parte Wilson

32 S.C. Eq. 445

• Court: Court of Appeals of South Carolina
• Decided: April 15, 1860
• Status: Published

Opinion

The opinion of the Court was delivered by

O’Neall, C. J.

From the earliest cases of which we have any account in this State, the commission in the nature of a writ de lunático inquirendo has been executed at the alleged lunatic’s residence, or in the vicinage. This was regarded as a convenient practice, both for the sake of the supposed lunatic, his family, friends, and the witnesses. But it is by no means so fixed and settled a rule as not to be departed from. Circumstances may make it necessary that it should be executed elsewhere. It is entirely a matter of discretion with the Chancellor or Judge ordering the inquisition.

Here, I have no doubt, the convenience of all was consulted, by having the inquisition executed in this city. Ordinarily, I should say, the traverse ought to be tried where the inquisition was found. That is more in harmony with the course of proceeding, and preserves the record in the same Court. But I have no doubt it may be tried in the jurisdiction where the alleged lunatic lives. On the present occasion, it has been so earnestly pressed upon the Court, and the Chancellor who allowed the traverse having, in this Court, of which he is a member, assented to the change of venue to Colleton district: it is, therefore, ordered, that the order allowing the traverse be so modified, that the traverse be made, docketed, and tried in Colleton district, at the next, or any subsequent term of the Court of Sessions of the peace, at which it may be practicable to try the same, and that the Judge presiding at the trial be requested to certify the verdict to the Court of Equity for Charleston district.

Johnstone and Wardlaw, JJ., concurred.

Order modified.