11 Paige Ch. 638 | New York Court of Chancery | 1845
The decision upon the feigned issue being in favor of the mental capacity of the alleged lunatic, the proceedings upon the commission must be discharged, and he must be restored to the full control of his property. The claim for costs, to be paid by the applicant upon whose petition the commission was issued, however, presents a' different question; as it is not’ a matter of course to give costs against the petitioner for a commission of lunacy, even where he’fails to obtain an inquisition finding the existence of the alleged lunacy. On the contrary, if the petitioner has proceeded in good faith and upon probable cause, he will not be charged with costs. As the petitioner must bear his'own cost's if he fails in'establishing the ltinacy, that in general is sufficient to restrain the prosecution of an unfounded charge of lunacy, where there is no probable effuse for the proceeding. Arid the fact'that a jury, legally and properly impanneled, has found the party proceeded against, mentally iñcónípetent for the ffiánagement of his property, is sufficient, prima facie,' to show that the petitioner had probable cause for his application for a commission; although another jury, upon the trial of the issue, has found the other way. In the present case, I have no doüfef tli'at the proceedings were instituted by tllff petitioner in good faith, for the protection of the property of Gilds; b'elieving him to be' of unsound mind, so as to be incapable
