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.
4. Now the rule is that if proceedings instituted by the next friend are unnecessary or improper and the next friend might, with reasonable care, have known them to be so, he must pay the costs personally. See Simpson on Infants, (2nd. Edn.), p. 484. The same rule has been laid down with regard to trustees who take upon themselves to appeal against the decision of the Court. In re Walters (1890) 34 S.J. 564 the Court of Appeal in England refused to allow trustees their costs of the appeal out of a fund and ordered them to pay the costs. Bowen, L.J. said that in his opinion when there was an unsuccessful appeal relating to a fund the appellant ought to be ordered to pay the costs; otherwise there would be a premium upon unsuccessful appeals. Fry, L.J. concurred and said:
The trustees were sufficiently protected by the order of the Court below and there was no ground for their coming to that Court.
5. Similarly in Ex parte Russell (1882) 19 Ch. Div. 588 , Sir George Jessell said:
In the County Court the trustees might fairly say, 'We want a decision about the settlement,' but having had a decision, if they choose to appeal, they must take the consequences.
6. They were ordered personally to pay the costs of the appeal.
7. Here, however, it is said that the guardian ad litem filed this appeal by the advice of his solicitor and counsel. That, however, is no reason for asking the Court to lessen the lunatic's funds by an order for payment of his costs in the unsuccessful appeal.
8. In re Beddoe, Downes v. Cottam (1893) 1 Ch. 547 Lindley, L.J. said:
But a trustee who, without the sanction of the Court, commences an action or defends an action unsuccessfully, does so at his own risk as regards the costs, even if he acts on Counsel's opinion; and when the trustee seeks to obtain such costs out of his trust estate, he ought not to be allowed to charge them against his cestui qui trust unless under very exceptional circumstances. If, indeed, the Judge comes to the conclusion that he would have authorized the action or defence had he been applied to, he might, in the exercise of his discretion, allow the costs incurred by the trustee out of the estate; but I cannot imagine any other circumstances under which the costs of an unauthorized and unsuccessful action brought or defended by a trustee could be properly thrown on the estate. Now if in this case the trustee had applied by an originating summons for leave to defend the action at the expense of the estate, I cannot suppose that any Judge would have authorized him to do so. Consequently, I should not myself have allowed these costs out of the estate.
9. Now, if the the guardian ad litem in the present case had been in serious doubt as to whether he ought not to file the appeal he could have adopted the course, which was in fact adopted a month later, of obtaining an order of the Court for the appointment of a committee of the property. That committee could then have applied to the Court for advice as to whether an appeal should be filed or not; and the guardian ad litem could have filed the appeal, if the Court thought it was a proper case, with the sanction of the committee of the property. We do no think, however, that this is a case in which the Court could have sanctioned the appeal, for the appeal had nothing to recommend it. The guardian ad litem having chosen upon his own responsibility to file this appeal must take the consequences to the extent of having to bear the costs of the appeal incurred by his authority.
10. We are not asked on behalf of the lunatic to throw the costs of the successful respondent upon the guardian ad litem; so with regard to them, we make no order.
11. We refuse the application.
12. The applicant must pay the costs of the committee of the property on this application.