22 Pa. 466 | Pa. | 1854
The opinion of the Court was delivered by
In England the general rule has been to allow the costs of a commission of lunacy out of the estate, if the lunacy be
But in Pennsylvania we have no occasion to lament the want of power to do justice. The Courts here have, by the constitution, the power of a Court of Chancery in cases óf that kind. By the Act of 13th June, 1836, they have the power to proceed “ as theretofore practised and allowed” in such cases, and where it is found by inquisition that the party with respect to whom the application was made is not a lunatic, and there is' a certificate from the judge holding the inquisition that “ there was not probable cause for the
There was therefore no want of power in the Common Pleas to make the decree complained of. As there was no certificate that the application was made without probable cause, there was nothing on the record to control the discretion of the Court, and to make it obligatory to order the party applying for the commission to pay the costs. There was nothing contrary to equity in making the order for payment of the costs pending the proceedings. On the contrary, the justice of the case may frequently require such an order. This order is not a final decree. It is merely an interlocutory order providing for the present payment of expenses incurred, and does not prevent the Court from making a different disposition of the question upon the final decree. If the justice of the case requires it, the party charged with the payment of costs under an interlocutory order, may be reimbursed under the final decree.
In this case, the costs claimed amount to $860. We have no ,means of judging of the propriety of the charges. The items are not stated on the paper-book. But the practice of allowing very high costs in these cases has been condemned as one which the Court should guard against with vigilance: Highmore on Lunacy 78. If the final result proves that there was no cause for the application, it is certainly wrong to lay a heavier burthen upon the object of it than the necessity of the case requires; and if, on the other hand, the application should be well founded, it is contrary to all the feelings of benevolence which prompt the public interference, to aggravate a family already distressed by such a visitation as lunacy, by diminishing, unnecessarily, their resources of comfort: Highmore on Lunacy .78.
As the proceeding is always intended for the benefit of the alleged lunatic, the presumption, in the absence of evidence to the contrary, is, that those who commence and carry it on, are governed by that object and have probable ground for their action. If the judge should perceive that there was no probable ground, the costs, as we have seen, are placed upon the applicants for the commission. But the party who may be unnecessarily harassed, without probable cause, has a still further remedy by action. Under these circumstances, we do not see any great hardship in an interlocutory order such as was made in the present case. At all events, there is no error in it for which we can reverse it. As we
The decree of the Common Pleas is affirmed.