In re Lasher

The Chancellor. There is no irregularity, or defective finding of the jury in this case. And the only questions for consideration are whether the court has the power to award a new commission; and if so, whether this is a proper case fot the exercise of the power. [98] In the case Ex parte Glen, (4 Dess. Rep. 546,) the court of chancery in South Carolina refused an application for a new commission, to enquire of the lunacy, upon the merits. But it appears to have been taken for granted that the court had the power to direct a new commission to be issued, in a proper case, although the jury had decided in favor of the competency of the alleged lunatic, and there had been no irregularity upon the execution of the commission. Shelford says that where a regular return is made, if there is sufficient evidence in the case to satisfy the chancellor that the party is a proper subject for a commission, a new commission will be directed to issue. And in the case of Donegal, (2 Ves. sen. 408,) Lord Hardwicke remarked that in Lord Wenman’s case no less than three commissions were applied for before he was found non compos mentis, I have no doubt, therefore, that the court has the power, in the exercise of a sound discretion,, to direct the issuing of a new commission, where from the evidence or otherwise, there is no (doubt that the jury must have erred in finding that the party (proceeded against was not of unsound mind. In this case, in addition to the unanimous opinion of the (Commissioners' that Mrs. Lasher is a lunatic, they have returned all the testimony which was before the jury upon the execution of the commission. And from an examination of that (testimony there does not appear to be any room to doubt that (this lady now is, and for several months has been, afflicted with mental derangement, so as to be incompetent to govern herself <or to manage her estate. A new commission must therefore issue, to enquire whether she is a lunatic, or of unsound mind; directed to the same commissioners