delivered the opinion of the Court. — This case presents three questions for the consideration and decision of the Court. 1st. Is the cause appealable ? 2d. Is there error upon the face of the record ? 3d. Is the inquisition traversable ?
1. We have already overruled the motion to dismiss. The statute (p. 333, sec. 7th,) gives the appeal in clear and explicit terms ; and we think it is dictated in wisdom. It is a well settled principle, that nothing is to be presumed in favor of the jurisdiction of courts of special and limited jurisdiction, and more especially of final jurisdiction. In England the common law courts have the superintendency over those courts, to keep them within their jurisdictions, to determine when they exceed them, and to restrain and prohibit such excess. The common law has reserved to itself the exposition of all such acts as concern either the extent of those courts, or the matters pending before them. If they refuse to allow the acts of parliament, or will expound them in any other sense than the common law puts upon them, the courts of Westminster will grant prohibition to restrain and control them. An appeal lies from all those courts. — 1 Bla. Com. 84. — It would be dangerous in the extreme to give courts of probate (which can have no jury,) final jurisdiction of causes of such vast importance as it respects the liberty and happiness of our citizens.
2. Is there error upon the face of the record ? We consider *341the duty of a judge of probate under our statute to be very and easy. When application ismadetohimforacommission ofluna-cy, accompanied with affidavit, he should issue it with on the same for notifying the pretended lunatic. The select men and civil authority are then to notify agreeably to directions, and make inquisition ; after which they are to make return to the judge of probate of all their doings; who is then to give the supposed lunatic reasonable notice of time and place, and a full hearing before him ; and if upon such full hearing he is satisfied the case requires it, he is to assign a guardian ; but must give opportunity and grant an appeal if requested.
We find in England that when application is made to the chancellor for a commission of lunacy, and that accompanied by affidavit evincing the lunacy of the party, a commission is issued under the great seal, and the commissioners named. Upon notice to them they issue a warrant to the sheriff, directing him to summon a jury and witnesses to attend the trial; and the commissioners explain the business to them : the supposed lunatic to be notified and present if he chooses, and if necessary, is examined, and the jury sign the inquisition. On the following day, the inquisition is engrossed on parchment and signed by the commissioners and jury, and, within a month, returned into chancery.— 2 MaddocJds, Chan. 728-9.
The statute of Massachusetts is very similar to ours, except it does not direct notice to be given. But we find in the case of Chase vs. Hathaway, the Supreme Court reversed a decree of the court of probate, because the judge did not notify the person before appointing a guardian. The court said that “ whether notice by the commissioners was essential or not, we are clear that it ought to be given before the adjudication in the probate court, and, without it, such adjudication is null and void.” As the appellant was not notified by the judge of probate, and had no opportunity of a hearing before him, the proceedings were irregular, and we are satisfied there is error on the face of the record, and that all is null and void.
3. Is the inquisition traversable ? — It would seem that the act of 3 827, (p. 11, sec. 4) had put the question at rest. It is there enacted “ that in all cases, now or hereafter pending before the Supreme Court by appeal from any order, sentence, decree or denial, of any probate court, said Supreme Court may, on application of either party, in the discretion of said court, cause to be tried by jury, in the county court, any issue of fact, formed between the parties in such case.” We find, from an examination of the authorities, that the inquisition is only presumptive evidence of *342or insanity, and that a traverse of it is a riahtby law, and ' J , , , . , .J may be sent to a court of common law to be tried by a jury. And t^ere ‘s any misbehavior in the execution of the inquisition, it will be examined into, and if the court see cause, they will quash it, and direct a new commission.
Langdon,iov appellant, Smith, for appellees.The foregoing principles are clearly established in Maddock's Chancery, p. 729, 731, 737-8 ; also in 3 Atkins, p. 184, and 1 Vesey, Jun, 455. We are fully satisfied, from a view of the British authorities, that the aforementioned statute was made in view of them, intending to give to our citizens as much security for their liberty and property, as are enjoyed by the subjects of Great Britain.- The right of trial by jury is too well secured to have any one arbitrarily deprived of a privilege so dearto every American citizen. Our independence cost too much to have our liberty and property wrested from us, and we put under guardianship without even the form of a trial. Should we sanction these proceedings, no one in the evening of lile could dwell secure, but would tremble at the approach of any one that entered his door, lest he was then to be called to surrender all that would render life desirable.
Decree reversed.