106 Pa. 527 | Pa. | 1884
delivered the opinion of the court,
In Clark’s Case, 22 Pa. St., 466, it was said that in Penn
Section 9 of the Act of 1836, P. L., 595, required the judge holding an inquisition, in case the party with respect to whom the application was made shall not be found a lunatic, and the judge believed there was not probable cause for the application, to so certify, and thereupon the party who made the application shall pay all the costs. The purpose or defects of that section need not be remarked. Ñor need we note the English rule that had been followed by the courts prior to the A'esting in them chancery powers, under which, in case the party was found a lunatic, the costs were usually paid out of his estate; and if not so found, neither he nor the person who made the application could recover costs.
The Act of 1849 expressly makes it the duty of the Court of Common Pleas out of which any commission in the nature of a writ de lunático inquirendo shall issue, to decide and direct who shall pay all the costs attendant upon the issuing and execution of such commission, or to apportion such costs as the justice of the case may require. That Act is remedial, and ought not to be construed so strictly as in a measure to defeat the object of the legislature. It put an end to the question as to the power and duty of the court to make a decree respecting costs, whether or not the party alleged to be insane was so found. It is said by the appellant that the Act relates only to the costs accrued at the return of the commission. But it is the right of a party found to be a lunatic to traverse the inquisition, and the end of the proceeding founded on the writ is not reached till judgment on the traverse. The costs accruing until the final judgment are attendant, that is, consequential, or immediately following, upon the issuing and execution of the commission. There may be a distinction between costs accrued before the return of the commission and those which accrued after, but we are of opinion the intendment of the statute includes all costs until final judgment in the proceeding.
The decree is unassailed for any cause shown in this court,
Decree affirmed, and appeal dismissed at costs of the appellant.