#### *Mary C.*Taylor, vs. *J. P. Williamson, & Henry*Taylor.

The Court of Equity exercises the discretionary power of removing the trial of a cause from one district to another, upon good cause being shewn. But until a party appears and shews such cause, he has no right to he heard on a motion.

*In Chancery,*****February Term,*1842.

The hill is filed against Mr. Williamson as executor of Henry Taylor, deceased, and alleges that he has proved the will of testator, in Savannah and Coosawhatchie; and that the testator was seized of lands and personal estate in South Carolina, in Beaufort District. On return of the *subpoena,*that defendant was not found; andan affidavit, that he resided in Savannah, complainant moved for a rule that he should appear at a certain day. His honor refused the rule, and ordered the case transfered to Beaufort district.

Petigru, for motion.

If lived in Georgetown and proved *349tlie will in Coosawliatchie, must be sued in Georgetown; if cause removed, complainant wishes this cause to proceed no further.

Colcock, contra:

Sto. Con. Laws, 448; 3, modes of jurisdiction, place of domicil — where property lies, or contract made, lb. 450; Chev. Eq. 42; analagous to real action, A A, 1784, power to make rules and orders; A A, 1810, causes arising in Beaufort District to be removed there.

DeTreville, same side.

One object of Bill, partition of lands, 2 Br. Dig. 103, Tit. Partition; 1 Br. Dig. 279; dower jointure, district in which lands are situated, 1 Bail, 409 ; 4 Munroe, 436 ; (2 *B*— & Har. Eq.' Dig. P. 9;) Act 1810, gives Court of Beaufort jurisdiction of causes arising there.

Petigru, in reply.

15 Peters, executor can only be sued in the State where he qualifies; old rule, non-residents not to be called to inconvenient distance — attachment, dower and partition, only, have courts.

From this order the complainant appealed, and moved that the same be reversed, for the following reasons :

1. That as Mr Williamson is not a resident of Beaufort district, he has no privilege to be sued in the Court which is held there exclusively.

2. That Mr. Williamson not having appeared, has no right to remove the cause to another District, and the complainant should be allowed to elect whether she will proceed further or not.

*

It does not appear, from the manuscript furnished the Reporter, who delivered the judgment of the Court in this case, or before whom this cause was tried on the circuit;, he has no means of ascertaining, and it will not answer for him to conjecture. For he might place the Chancellor in a position that he would not desire to occupy. It does not appear whether Johnson, Chancellor, signed the opinion or not.

*Curia,*per-Chancellor.

When the motion for a rule of publication is made, the Chancellor may properly look into the bill for the purpose of ascertaining whether the Court can entertain jurisdiction of the cause. If found to be within the jurisdiction, the Act of Assembly of 1784, directs the rule to issue and publication to be made. In the case of *Bowden*vs. Shatzell, 1 Bail. Ch. 360, it has been determined that a person, absent from the State, may® be made a party in respect of property within the State, though there may be no other party within the State. Then the question is, whether the Court of Chancery sitting for Charleston, has jurisdiction in respect of property situated in Beaufort district. Unless there is some-*350tiling to limit it, the Court, in whatever District *sitting,*has jurisdiction over the whole State. A suit- may he entertained in one district for the partition of lands lying in any part of the State. Previously to the Act of 1791, {1 Faust, *29)*the Court of Chancery sat in Charleston alone, and its jurisdiction of cause extended to the entire State; and the Act of 1784 directs that the rule, of Court shall he published in the South Carolina Gazette and another copy thereof posted up at the door of the State House in Charleston. This provision of the act has never been altered, though, by an equitable construction, it has been determined that where one party is within the State and another absent from it, the suit being brought in the district, in which the one defendant resides, publication may be made in the same district. By the Act of 1791, establishing Equity Districts, it is provided ‘-‘that all future sittings of the Court of Equity for the full and solemn hearing of causes shall be held at the time, and places hereinafter directed; that is to say, at Columbia, for all, causes wherein the defendant shall reside in Camden, Orangeburg and Cheraw districts cfec., as to the other districts. And in all subsequent Acts establishing Equity Districts, the direction is that the suits shall be brought in the districts in which the defendants or a majority of them reside. It would seem to follow, therefore, that when there is no defendant within the State, residing in any district, the Act of 1784 applies and the suit must be brought and the publication made there; and perhaps this may be advantageous to absent defendants as being the place of greatest resort, where publications are likely to have the greatest notoriety, and to afford them the best chance of actual notice. Ñor do I think that any difference is made by the particular terms of the Act of 1810, establishing a Court of Equity for Beaufort district, which directs that all causes depending in Charleston, which have *arisen*in Beaufort district shall be transfered to the office of the commissioner of that district. This must be construed in reference to the general law, and by that, a cause is said to have arisen in a particular district when the defendants, or a majority of them reside there. If the defendant, shall appear and shew good cause for removing the case *351to another district, it will be within the discretion of the Court to direct such removal. But until he does appear he has no right to be heard on any motion. It is ordered that the decision of the Chancellor be reversed and that the rule issue.

We concur:

Benjamin F. Dunkin, Wm. Harter.

Johnston, Chancellor, said —

“I concur in the result of the decision, but I think some explanation should be made, in order to prevent misconception. I do not agree to so much of the opinion just delivered as would make Charleston the Court of exclusive jurisdiction in case of absent defendants. My opinion is briefly this; that the Court is a Court of general jurisdiction, which jurisdiction is to be exercised in any district, where it is not forbidden to be exercised by some particular law; and that the bill may be filed in any district, and can only be trans-fered to another district upon the defendant’s appearing and showing cause. In this case the defendant has not appeared, and no notice could be taken of his objection. The plaintiff being properly in Court, had a right to an order for publication and the order of the Court refusing it to him should be set aside, as well as the order for transfer-ing the case.”

Petigru & Lessene, for the motion. W. F. Colcock, contra: