SHAPURJI HORMASJI HARVER Vs. MONOSSEH JACOB MONOSSEH

JUDGEMENT

(1.) This is an application on behalf of the guardian ad litem of the defendant in this suit who is an adjudged lunatic, for an order allowing him to have his costs of an appeal filed by him in the suit out of the estate of the lunatic.

(2.) The suit was originally filed by the plaintiff against the defendant upon a mortgage and deed of further charge, and in consequence of the defendant's state of mind the present applicant was appointed his guardian ad litem. The principal defence raised in the suit was that the defendant on the dates of the execution of the documents sued on was of unsound mind and that, therefore, he was not liable for the amount advanced by the plaintiff on those occasions. The suit was heard before Mr. Justice Macleod at great length and that learned Judge delivered a very careful judgment. The suit was dismissed but the guardian ad litem was allowed his costs out of the estate. He was not satisfied, however, with the decision and filed an appeal against it. The appeal was argued before us and turned entirely upon the facts of the case and was dismissed. Shortly after the appeal had been filed, committees of the person and property of the defendant were appointed. The committee of the property is on this application represented by counsel.

(3.) It is a fact, although our judgment will not be influenced by that fact, that the applicant was personally interested in defeating the claim of the plaintiff, because he is the brother of the defendant and in the event of the defendant's death will succeed to a portion of his property under the Parsi Law. The guardian ad litem appointed by the Court usually gets his costs out of the estate of the defendant whom he represents if he does not recover them from the plaintiff; but when the guardian ad litem takes upon himself to appeal against a decree passed against the lunatic, whom he represents, he puts himself in the position of a next friend initiating proceedings, and no longer is in the position of a passive guardian ad litem.