Chapman, C. J.
The question which this case presents arises upon the defendant’s request for instructions, and the instructions that were actually given. The defendant asked the court to rule that if the plaintiff was insane, and the defendant, honestly relieving that the welfare of the plaintiff demanded that he should go from the crowd, to which he was talking, to a place of quiet near by, took him forcibly to such place, using no more force than was necessary for the purpose, and acting from no other motive than a desire to assist and protect the plaintiff, such act would not be an assault nor an unlawful arrest or imprisonment. The court declined to give this instruction, but instructed the jury that, if the. plaintiff was insane, the officer had a right to arrest him, but it would in such case be his duty immediately to take proper steps to have him committed to a lunatic hospital, and if he failed to do so he would be liable from the beginning for the arrest.
Both the request and the instructions assume that he was neither dangerously insane, nor disturbing the peace, but was merely insane. The defendant was a deputy of the state constable, but his office gave him no authority over the plaintiff. He had only such authority as any private person would have. The right which every citizen has to enjoy personal liberty is necessarily subject to some exceptions. Most of these exceptions are enumerated in Colby v. Jackson, 12 N. H. 526, and the authorities there cited. Among them, are the right to restrain a person who is fighting, or doing mischief, or disturbing a congregation, or has fallen in a fit, or is so sick as to be helpless, or is unconsciously going into great danger, or is drunk; or has delirium tremens, or is so insane as to be dangerous to himself or others. In such cases, the right to restrain persons has its foundation in a reasonable necessity, and ceases with the necessity. As to insane per sons who are not dangerous, they are not liable to be thus arrested or restrained by strangers. Bac. Ab. Trespass, D. Anderdon v. Burrows, 4 C. & P. 210. Scott v. Wakem, 3 Fost. & Finl. 328. Fletcher v. Fletcher, 28 L. J. N. S. (Q. B.) 134. In re Oakes, 8 Law Reporter, 122. There is no reason why they should be thus liable; for it is well known that many persons who are in[121]*121sane, and especially monomaniacs, are as harmless as any other persons, and are not deemed proper subjects for treatment in a hospital. The request for instructions was properly refused.
C. Marston Q. W. Clifford, for the plaintiff.
E. E. Bennett, for the defendant.
We need not in this case discuss the question whether the defendant would have had the right, as stated in the instructions given, to take up the plaintiff, he not being a dangerous person, provided he had taken the proper steps to have him committed t) a lunatic hospital; for he took no such steps. There was no legal justification for the acts of the defendant.
It is elementary law that one who would justify himself under a statute must pursue the statute. The question put to the defendant as a witness, by his counsel, whether he was acting under the direction of any superior officer, was properly ruled to be inadmissible, because he did not proceed under the statutes, but merely held the plaintiff for a while, and then released him. A superior officer could not authorize this course.
The question whether in his opinion the mind of the plaintiff, at the time of the arrest, was in a normal or abnormal condition, and whether the plaintiff was sane or insane, was also inadmissible, because the fact itself was immaterial, it not being pretended that the defendant was acting under the statutes.
The subsequent commitment of the plaintiff to the hospital by another constable was a separate matter, and could not have justified the defendant, even if it had been legal.
Exceptions overruled.
The second case was an action of tort brought in this court by the same plaintiff against the superintendent of the Taunton Lunatic Hospital for unlawfully confining the plaintiff there during two days. The answer, besides a general denial, set up facts to justify the confinement, to which the plaintiff demurred, and which are stated in the opinion; and the case was thereupon reserved by the chief justice for the determination of the full court, to stand for trial if the demurrer should be sustained, otherwise the defendant to have judgment.
[122]*122Chapman, C. J.
The defendant was superintendent of the insane hospital at Taunton, and had authority to receive all persons who were legally' brought as patients to that institution. The plaintiff was brought there on Saturday, August 21, 1869, by Robert Grossman, a deputy state constable, on a complaint made by Crossman, and directed to the judge of probate for the county of Bristol, on the day previous, stating that the plaintiff was an insane person and a proper subject for treatment and custody in a state lunatic hospital. One of the selectmen of Rochester, the place of the plaintiff’s residence, had in writing acknowledged notice of the complaint and application; and two physicians had signed and sworn to a certificate that within one week previous to the date of the complaint they had made a personal examination of the plaintiff, and after due inquiry and personal examination they were satisfied that he was a fit subject for remedial treatment at the hospital. But it omitted to state that he was insane, and thus failed to be such a certificate as is required by the Sts. of 1862, a. 223, §§ 3, 8, and 1865, a. 268, § 1. The officer took these papers with him to the hospital, but had no warrant. The excuse offered is, that the judge of probate for Bristol, and also the judge of probate for Plymouth, were both absent from the counties, and no warrant could then be obtained. Cross-man desired to leave the plaintiff at the hospital until the following Monday, for the purpose and with the intention to procure the other papers usual in such cases. The assistant superintendent received the plaintiff, believing him to be a fit subject for hospital treatment, and kept him confined till Monday, August 23, when his friends came and took him away. He was within the meaning of the law an insane person, and a proper subject for treatment in the hospital, though not dangerous to himself or the community.
The truth of these statements is admitted by the demurrer. The notice issued by the judge of probate on August 28 is im material, for it could not have any application to the imprisonment complained of.
We look in vain in the statutes for any authority in Grossman to take the plaintiff to the hospital, or to arrest him, without » [123]*123warrant, even though his purpose was to detain him till he could carry him before the judge of probate, and procure a warrant, as soon as the judge should return home, the plaintiff not being dangerous either to himself or others. The statutes give no authority to arrest harmless persons without a warrant, even for the purpose of bringing them before the judge of probate. And were it otherwise, the officer has abandoned all proceedings under the statutes. Being a mere stranger to the plaintiff, and abandoning the arrest without making any return, he had not even the rights that a relative or friend would have.
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Chapman, C. J.
The question which this case presents arises upon the defendant’s request for instructions, and the instructions that were actually given. The defendant asked the court to rule that if the plaintiff was insane, and the defendant, honestly relieving that the welfare of the plaintiff demanded that he should go from the crowd, to which he was talking, to a place of quiet near by, took him forcibly to such place, using no more force than was necessary for the purpose, and acting from no other motive than a desire to assist and protect the plaintiff, such act would not be an assault nor an unlawful arrest or imprisonment. The court declined to give this instruction, but instructed the jury that, if the. plaintiff was insane, the officer had a right to arrest him, but it would in such case be his duty immediately to take proper steps to have him committed to a lunatic hospital, and if he failed to do so he would be liable from the beginning for the arrest.
Both the request and the instructions assume that he was neither dangerously insane, nor disturbing the peace, but was merely insane. The defendant was a deputy of the state constable, but his office gave him no authority over the plaintiff. He had only such authority as any private person would have. The right which every citizen has to enjoy personal liberty is necessarily subject to some exceptions. Most of these exceptions are enumerated in Colby v. Jackson, 12 N. H. 526, and the authorities there cited. Among them, are the right to restrain a person who is fighting, or doing mischief, or disturbing a congregation, or has fallen in a fit, or is so sick as to be helpless, or is unconsciously going into great danger, or is drunk; or has delirium tremens, or is so insane as to be dangerous to himself or others. In such cases, the right to restrain persons has its foundation in a reasonable necessity, and ceases with the necessity. As to insane per sons who are not dangerous, they are not liable to be thus arrested or restrained by strangers. Bac. Ab. Trespass, D. Anderdon v. Burrows, 4 C. & P. 210. Scott v. Wakem, 3 Fost. & Finl. 328. Fletcher v. Fletcher, 28 L. J. N. S. (Q. B.) 134. In re Oakes, 8 Law Reporter, 122. There is no reason why they should be thus liable; for it is well known that many persons who are in[121]*121sane, and especially monomaniacs, are as harmless as any other persons, and are not deemed proper subjects for treatment in a hospital. The request for instructions was properly refused.
C. Marston Q. W. Clifford, for the plaintiff.
E. E. Bennett, for the defendant.
We need not in this case discuss the question whether the defendant would have had the right, as stated in the instructions given, to take up the plaintiff, he not being a dangerous person, provided he had taken the proper steps to have him committed t) a lunatic hospital; for he took no such steps. There was no legal justification for the acts of the defendant.
It is elementary law that one who would justify himself under a statute must pursue the statute. The question put to the defendant as a witness, by his counsel, whether he was acting under the direction of any superior officer, was properly ruled to be inadmissible, because he did not proceed under the statutes, but merely held the plaintiff for a while, and then released him. A superior officer could not authorize this course.
The question whether in his opinion the mind of the plaintiff, at the time of the arrest, was in a normal or abnormal condition, and whether the plaintiff was sane or insane, was also inadmissible, because the fact itself was immaterial, it not being pretended that the defendant was acting under the statutes.
The subsequent commitment of the plaintiff to the hospital by another constable was a separate matter, and could not have justified the defendant, even if it had been legal.
Exceptions overruled.
The second case was an action of tort brought in this court by the same plaintiff against the superintendent of the Taunton Lunatic Hospital for unlawfully confining the plaintiff there during two days. The answer, besides a general denial, set up facts to justify the confinement, to which the plaintiff demurred, and which are stated in the opinion; and the case was thereupon reserved by the chief justice for the determination of the full court, to stand for trial if the demurrer should be sustained, otherwise the defendant to have judgment.
[122]*122Chapman, C. J.
The defendant was superintendent of the insane hospital at Taunton, and had authority to receive all persons who were legally' brought as patients to that institution. The plaintiff was brought there on Saturday, August 21, 1869, by Robert Grossman, a deputy state constable, on a complaint made by Crossman, and directed to the judge of probate for the county of Bristol, on the day previous, stating that the plaintiff was an insane person and a proper subject for treatment and custody in a state lunatic hospital. One of the selectmen of Rochester, the place of the plaintiff’s residence, had in writing acknowledged notice of the complaint and application; and two physicians had signed and sworn to a certificate that within one week previous to the date of the complaint they had made a personal examination of the plaintiff, and after due inquiry and personal examination they were satisfied that he was a fit subject for remedial treatment at the hospital. But it omitted to state that he was insane, and thus failed to be such a certificate as is required by the Sts. of 1862, a. 223, §§ 3, 8, and 1865, a. 268, § 1. The officer took these papers with him to the hospital, but had no warrant. The excuse offered is, that the judge of probate for Bristol, and also the judge of probate for Plymouth, were both absent from the counties, and no warrant could then be obtained. Cross-man desired to leave the plaintiff at the hospital until the following Monday, for the purpose and with the intention to procure the other papers usual in such cases. The assistant superintendent received the plaintiff, believing him to be a fit subject for hospital treatment, and kept him confined till Monday, August 23, when his friends came and took him away. He was within the meaning of the law an insane person, and a proper subject for treatment in the hospital, though not dangerous to himself or the community.
The truth of these statements is admitted by the demurrer. The notice issued by the judge of probate on August 28 is im material, for it could not have any application to the imprisonment complained of.
We look in vain in the statutes for any authority in Grossman to take the plaintiff to the hospital, or to arrest him, without » [123]*123warrant, even though his purpose was to detain him till he could carry him before the judge of probate, and procure a warrant, as soon as the judge should return home, the plaintiff not being dangerous either to himself or others. The statutes give no authority to arrest harmless persons without a warrant, even for the purpose of bringing them before the judge of probate. And were it otherwise, the officer has abandoned all proceedings under the statutes. Being a mere stranger to the plaintiff, and abandoning the arrest without making any return, he had not even the rights that a relative or friend would have. He brought the plaintiff to the hospital tortiously, and no authority could be derived from him for the plaintiff’s detention. As the plaintiff was not detained by virtue of the statutes, or by any power derived from the common law, all persons concerned in the detention are wrongdoers.
The kindness with which the plaintiff was treated, and the good motives which dictated his detention, should affect the question of damages, but cannot affect his legal right to his personal liberty. He has a right of action against any and all persons who have been concerned in depriving him of it without legal authority. Though the defendant was absent when the plaintiff was brought to the hospital, yet the plea does not state that he was not afterwards present and consenting to the detention till Monday, when the plaintiff’s friends came and took him away.
Oase to stand for trial.