The inquisition returned in this case, shows that the jury found that the said Curtis White, at the time of taking said inquisition, was not a lunatic, but was of sound mind. He now asks that the party at whoso instance the inquisition issued, -should be decreed to pay bis costs in resisting the commission.
The commission issued on the application of a son of the alleged lunatic. It is not suggested that it was not made from proper motives, and prosecuted in good faith-. The application for costs rests, exclusively, on the ground that the petitioner was unsuccessful in establishing the existence of lunacy at the time of taking the inquisition.
A person petitioning for, and prosecuting a commission of lunacy, is entitled to be repaid the -costs he shall have properly so incurred. But if the party be found of sound mind, or the commission be superseded before a guardian is -appointed, the prosecutor cannot be allowed bis costs, however meritorious his conduct may have been, there being no fund out of which the Chancellor can direct them to be paid. 1 Collinson on Lunatics 461.
The proceeding being instituted for the benefit of the alleged lunatic, or his estate, the petitioner is, in justice, entitled to be repaid bis costs reasonably incurred, whether the lunacy be established, or not. It is true that where the party is found of sound mind, the prosecutor cannot be allowed his costs, because there is no fund out of which they can be paid. But there is no reason for condemning him in costs, whatever may be the result of the proceeding, provided it was prosecuted in good faith.
So where the petition for a commission of lunacy is opposed, costs are allowed, in the discretion' of the court, ac*278cording as the fairness of intention, and the reasonableness of either party’s proceedings may appear. The court has gone so far as to order the nearest relations of a lunatic to pay the costs of an opposition to the petition of a mere stranger, where it appeared from their own statements, that a commission ought to issue. In re Smith, 1 Russ. 348; Stock on Non Comp. 97.
Where the commission is sued out maliciously, or without probable cause, the peison prosecuting the commission may be ordered to pay costs. Shelford on Lunatics 105. But I find no instance in which costs have been given against a party prosecuting an inquisition in good faith, whatever may have been the result of the inquiry, nor am I aware of any principle upon which such an order could be based.
The motion must be denied.