Opinion,
Mr. Justice Green:
It is perhaps singular that there is such a dearth of authority upon the question whether it is within the power of the Court of Common Pleas to set aside an inquisition of lunacy, finding the fact of lunacy in a proceeding de lunático inquirendo, upon the ground that the evidence is insufficient to sustain' the finding. We have not been referred to a single case by the counsel on either side, in which this direct question has been either considered or decided.
In Pennsylvania the absence of authority is doubtless due to the fact that the uniform practice has been to contest the find-' ing of the inquest upon the merits, by means of a traverse,, as is provided by our acts of Assembly. But in England where,, since the statute of George IV., the allowance of a traverse depends upon the grace of the chancellor, one might expect to discover a well-defined practice upon this subject. Such a cursory resort to the English books as has been within the writer’s limited opportunity, however, has failed to disclose a practice consistent with the action of the court below in setting .aside the .present inquisition. But in any event the question must be settled by a reading of our own statutes.
[229] The right to traverse an inquest of lunacy has doubtless always existed in Pennsylvania. It was recognized in Beaumont’s Case, 4 R. 866,. decided in 1884, wherein it was held that a certiorari and hot a writ of error was required in order to remove the record where the' inquisition was'quashed upon excéptions filed. At the close of the opinion, Gibson, C. J., said the proceedings “ would seem to be revisable by writ of error after pleading to issue on a traverse of the inquisition.”
The .act of 1836 gives the right of traverse in substantially the same language as the act of 1874, but the right doubtless came originally from the English practice in chancery'in lunacy cases. In looking for the origin óf the right there I find that in Shelford on Lunacy, p. 114, the subject is thus presented: “ By the statute of 2d and 3d Edw. VI. c. 8, § 6, it is provided that if any person shall be untruly found lunatic or idiot every person and persons aggrieved by such office or inquisition shall and may have his or their traverse to the same immediately or after, at his or their pleasure, and proceed to trial therein and have like remedy and advantage as in other cases of traverse upon untrue inquisitions or offices found.” Although this language is more than three hundred years old it is almost identical with that which is employed in our own acts, and indicates the source from which our legislation was derived. The writer (Shelford) proceeds to show that by statute of George IV. c.-53, the person desiring to traverse must present his petition to the chancellor, and obtain leave to traverse. Although the traverse under the statute of George would seem to depend upon the grace of the chancellor, the authorities show that it was rarely withheld and was so far regarded as a matter of right as to be always granted unless some very special and peculiar reason existed for denying it.
Of course, under our own statutes it has always been a matter of right. The words of our present law, act of 8th May, 1874, P.' L. 122, are “ every person aggrieved by any inquisition of lunacy or habitual drunkenness may traverse the same upon or after the return of the same, and proceed to trial thereon and have like remedy and advantage as in other cases of traverse upon untrue inquisitions found.” Of course, it must be conceded that it was intended by this law to give a [230] remedy for an untrue inquisition found. That is, a right to contest the correctness of the finding of the inquest of the various matters of fact enumerated in the commission, is conferred upon any party aggrieved by the inquisition. The exercise of the right to traverse is by means of a jury trial, and the person aggrieved may have a jury trial upon the facts found by the inquest. If now the court may set aside the inquisition because it does not agree to the conclusions of fact returned by the inquest, the right to have those facts tried by a jury is taken away at least from the party in whose favor the inquisition has been returned. If the court may thus dispose of one case it may dispose in the same way of all inquisitions that may come before it. In other words, the power to review the inquest’s findings of fact may be entirely exercised by the court to the exclusion of a jury trial upon a traverse! Of course this cannot be. It is enough to know that no such power is given by the law to the courts, and it is, in our judgment, quite conclusive of the subject to know that the special remedy for this very purpose is given in express terms, by means of a jury trial upon a traverse. The act of 21st March, 1806, which has beenso many times appealed to in cases of questionable remedies, is entirely in point. That act directs that “in all cases where a remedy is provided or duty enjoined or anything directed to be done by any act or acts of Assembly of this commonwealth, the directions of said acts shall be strictly pursued.”
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Opinion,
Mr. Justice Green:
It is perhaps singular that there is such a dearth of authority upon the question whether it is within the power of the Court of Common Pleas to set aside an inquisition of lunacy, finding the fact of lunacy in a proceeding de lunático inquirendo, upon the ground that the evidence is insufficient to sustain' the finding. We have not been referred to a single case by the counsel on either side, in which this direct question has been either considered or decided.
In Pennsylvania the absence of authority is doubtless due to the fact that the uniform practice has been to contest the find-' ing of the inquest upon the merits, by means of a traverse,, as is provided by our acts of Assembly. But in England where,, since the statute of George IV., the allowance of a traverse depends upon the grace of the chancellor, one might expect to discover a well-defined practice upon this subject. Such a cursory resort to the English books as has been within the writer’s limited opportunity, however, has failed to disclose a practice consistent with the action of the court below in setting .aside the .present inquisition. But in any event the question must be settled by a reading of our own statutes.
[229] The right to traverse an inquest of lunacy has doubtless always existed in Pennsylvania. It was recognized in Beaumont’s Case, 4 R. 866,. decided in 1884, wherein it was held that a certiorari and hot a writ of error was required in order to remove the record where the' inquisition was'quashed upon excéptions filed. At the close of the opinion, Gibson, C. J., said the proceedings “ would seem to be revisable by writ of error after pleading to issue on a traverse of the inquisition.”
The .act of 1836 gives the right of traverse in substantially the same language as the act of 1874, but the right doubtless came originally from the English practice in chancery'in lunacy cases. In looking for the origin óf the right there I find that in Shelford on Lunacy, p. 114, the subject is thus presented: “ By the statute of 2d and 3d Edw. VI. c. 8, § 6, it is provided that if any person shall be untruly found lunatic or idiot every person and persons aggrieved by such office or inquisition shall and may have his or their traverse to the same immediately or after, at his or their pleasure, and proceed to trial therein and have like remedy and advantage as in other cases of traverse upon untrue inquisitions or offices found.” Although this language is more than three hundred years old it is almost identical with that which is employed in our own acts, and indicates the source from which our legislation was derived. The writer (Shelford) proceeds to show that by statute of George IV. c.-53, the person desiring to traverse must present his petition to the chancellor, and obtain leave to traverse. Although the traverse under the statute of George would seem to depend upon the grace of the chancellor, the authorities show that it was rarely withheld and was so far regarded as a matter of right as to be always granted unless some very special and peculiar reason existed for denying it.
Of course, under our own statutes it has always been a matter of right. The words of our present law, act of 8th May, 1874, P.' L. 122, are “ every person aggrieved by any inquisition of lunacy or habitual drunkenness may traverse the same upon or after the return of the same, and proceed to trial thereon and have like remedy and advantage as in other cases of traverse upon untrue inquisitions found.” Of course, it must be conceded that it was intended by this law to give a [230] remedy for an untrue inquisition found. That is, a right to contest the correctness of the finding of the inquest of the various matters of fact enumerated in the commission, is conferred upon any party aggrieved by the inquisition. The exercise of the right to traverse is by means of a jury trial, and the person aggrieved may have a jury trial upon the facts found by the inquest. If now the court may set aside the inquisition because it does not agree to the conclusions of fact returned by the inquest, the right to have those facts tried by a jury is taken away at least from the party in whose favor the inquisition has been returned. If the court may thus dispose of one case it may dispose in the same way of all inquisitions that may come before it. In other words, the power to review the inquest’s findings of fact may be entirely exercised by the court to the exclusion of a jury trial upon a traverse! Of course this cannot be. It is enough to know that no such power is given by the law to the courts, and it is, in our judgment, quite conclusive of the subject to know that the special remedy for this very purpose is given in express terms, by means of a jury trial upon a traverse. The act of 21st March, 1806, which has beenso many times appealed to in cases of questionable remedies, is entirely in point. That act directs that “in all cases where a remedy is provided or duty enjoined or anything directed to be done by any act or acts of Assembly of this commonwealth, the directions of said acts shall be strictly pursued.”
Nor is it at all necessary to hold consistently with this view that there is no power of supervision residing in the court over the proceedings of the inquest, in the exercise of which the inquisition may be set aside. It cannot be doubted that if there are objections to the regularity or validity of the proceedings, such as the appointment of improper persons as commissioners or jurors upon the inquest, or misbehavior in office by these functionaries ; or if the formalities required by law have been disregarded; or if the alleged lunatic is not within the jurisdiction of the court, for these and other like causes doubtless the court may interfere, and if necessary set aside the inquest. But that is a very different kind of authority from the power to review the facts found by the inquest and determine them upon the merits, as those merits appear to the court. That [231] kind of authority is not conferred by any law and, therefore, we cannot hold it to exist. The form of the commission is prescribed by the third section of the act of 1836, and it distinctly requires that the commissioners shall “ diligently inquire by the oaths or affirmations of six good and lawful men of the county of-by whom the truth of the matter may be better known whether the said-- is a lunatic or not.” This gives the whole power to the jurors sitting upon the inquest to determine the fact of lunacy; and while the commissioner may differ in opinion upon the facts in question from the jury, he has no power to participate in the finding, and hence his opinion can in no manner control the finding of the inquest. And so we apprehend as to the further proceedings to impeach the findings of the inquest upon the controverted facts; they must consist of a traverse and a jury trial. To allow the court to review the testimony taken before the inquest and decide upon its merits, is practically to supersede the traverse which is the remedy provided by the law. Nor do we understand how the court can have access to the testimony in order to review it. It is no part of the record and there is no provision for its return by the inquest or by the commissioner. The inquisition must be returned because the commission so directs, but not so as to the testimony. There is no provision for its reduction to writing, nor for bills of exception to bring it on the record. Moreover, if the court has power to examine and decide upon it finally, this court necessarily has power to review the action of the court below, but has no means of exercising that power, because the testimony cannot be brought before us for want of a bill of exceptions. Upon every view of the subject we are of opinion that the learned court below was in error in making absolute the rule to set aside the inquisition.
On the question of costs we infer they were imposed upon the petitioner because the inquisition was set aside. As we have decided to reverse that order and re-instate the inquisition that reason no longer exists. We have not been referred to any case in which costs have been imposed upon the petitioner after inquisition returned finding the party a lunatic and before final decree. In Clark’s Case, 22 Penn. St. 466, the costs were imposed upon the estate of the lunatic after in[232] quisition found against him, and it was held to be within the power of the court. But in the same case we said “ where it is found by inquisition that the party with respect to whom the application was made is not a lunatic, and there is a certificate from the judge holding the inquisition that ‘ there was not probable cause for the application,’ the party who instituted the proceeding is liable for the costs.” This was under the act of 1836. The act of 1849 gives general power to the court to decree who shall pay the costs, or to apportion them among the parties; but we think when the inquisition has found the fact of lunacy, and thus justified the proceeding, it would be a severe measure of justice to impose all the costs upon the petitioner pending the proceedings, unless there was some special and sufficient reason appearing in the record in support of such an order. We see no reason of that kind upon the present record and we therefore reverse the order imposing the costs upon the petitioner.
The order making absolute the rule to set aside the inquisition is reversed and the inquisition is re-instated and record remitted for further proceedings; the order directing the payment of the costs by the petitioner, Samuel H. Warner, is also reversed.