Chester v Rolfe
| Jurisdiction | England & Wales |
| Judgment Date | 20 December 1853 |
| Date | 20 December 1853 |
| Court | High Court of Chancery |
English Reports Citation: 43 E.R. 720
BEFORE THE LORDS JUSTICES.
S. C. 23 L. J. Ch. 233; 18 Jur. 114; 2 Eq. Rep. 19.
[798] chester v. rolfe. In the Matter of george rutter, a Lunatic. Before the Lords Justices. Dec. 20, 1853. [S. C. 23 L. J. Ch. 233; 18 Jur. 114; 2 Eq. Rep. 19.] A commission de lunatico inquirendo was issued against a man, on the petition of his wife, and he was found lunatic, and died. Held, that if the proceeding was for his benefit, the solicitor employed in it by the wife was entitled to institute a creditor's suit in respect of his costs. A question had arisen in the above cause, which came before the Master of the Rolls upon an administration summons, and His Honour desired the question to be mentioned to their Lordships, being one that related to a matter in lunacy and arising under the following circumstances :- On the 8th May 1852, the wife of Mr. George Rutter instructed Mr. Chester, a solicitor, to issue and prosecute a commission in lunacy against her husband. Mr. Chester, pursuant to such instructions, prepared a petition for a commission in which the wife was the Petitioner. The commission issued and, under it, Mr. Rutter was found a lunatic, or person of unsound mind, and incapable of conducting his affairs. It had been at first intended to make Mr. Rutter's children Petitioners, but information was obtained at the office in lunacy, that if the wife was not the Petitioner, she must be served with the petition, which would occasion additional expense. Pursuant to an order of their Lordships made on the [799] 17th of November 1852, in the matter of the lunacy, on the petition of Mrs. Rutter, Mr. Chester's bill of costs therein was taxed at 156, 18s. lid., which included 19, 3s. 4d., the costs of the order confirming the Master's report, appointing a committee of the estate and person of the lunatic, and directing such committee to pay to the wife of the lunatic 20 per annum by monthly instalments. The taxed bill of costs also included 7, 19s. 6d. being the amount of the costs of the heir at law and next of kin on the petition. The lunatic died in 1853. Mr. Chester delivered his bill of costs to the lunatic's executors, requesting payment, and on their failing to pay, he took out a summons against them for the administration of the lunatic's estate as a creditor in respect of the amount of his bill. In opposition to the summons the Defendants made affidavits stating that the commission had not been of...
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