Cooley, J.
On the first day of October, 1874, Mrs. Newcomer, the defendant in error, being at the passenger house of the Michigan Central Railroad at Albion, [123]*123was forcibly taken and put aboard the cars of that railroad and removed to the Michigan Asylum for the Insane at Kalamazoo, where she was restrained of her liberty until the fourth day of August following. The persons chiefly instrumental in procuring this confinement were her son-in-law and his mother, with whom she had had difficulty, but her daughter gave assent. The person who accompanied her on the cars and to the asylum was one of the superintendents of the poor of Calhoun county, who, it is now conceded, had no legal authority for interference beyond that which might be claimed for any citizen. The reason assigned for removing Mrs. Newcomer to the asylum was her insanity. There had been no judicial finding of the fact, and it is not alleged that there were any such manifestations of mental delusion , as indicated danger to others. The plaintiff in error was at the time in charge of the asylum, and he received and detained Mrs. Newcomer in the full belief that she was insane. It is shown in this case that the [124]*124medical and other assistants in the asylum believed her to be insane while she remained there.
On being discharged from the asylum Mrs. Newcomer brought suit for false imprisonment, and has recovered as her damages $6,000. The gravity of the questions involved would have warranted bringing the case here had the recovery been nominal only; but this considerable recovery rendered that course imperative. The case has been very earnestly and forcibly presented on the part of the defense, in the full belief that the usefulness, perhaps the very existence, of the asylum depends upon the reversal of the judgment and the correction of the errors which are supposed to have led to its recovery.
I shall give no attention to any but the main questions in the case'; all the others are fully and satisfactorily examined by Mr. Justice Marston, and I concur in what he says upon them.
Mrs. Newcomer claims never to have been insane at all, and the contest in the court below was mainly over the question of fact. She insists, however, that had she been insane, Dr. Van Deusen had no authority of law to restrain her of her liberty. The position assumed on her behalf is that, with perhaps the exception of indigent persons for whose case special provision is made by statute, no one can lawfully be sent to or confined in the asylum who has not been found to be insane on a regular inquisition for the purpose. This position is the first which it becomes necessary for us to examine; and it involves the whole theory of State action relating to this important institution.
The constitution provides that “Institutions for the benefit of those inhabitants who are deaf, dumb, blind or insane, shall always be fostered and supported.” Art. 13, § 10. The provision is found in the article respecting education, between those which have for their object the support of the University and of the Agricultural [125]*125College. The position is significant, and gives emphasis to the word benefit which characterizes the policy indicated. Obviously what'was had in view as a primary object was to aid in bringing this unhappy class to a better condition; to improve their mental state wherever it should be found possible; to establish in their interest a great and noble charity. The asylums were to be retreats for proper instruction and treatment, and not in any sense prisons or bedlams.
I have no doubt it is because this State policy wras well understood by the people at large that there has been so little legislation on the subject. Provision has been made under which insane indigent persons may be sent to the asylum by the county authorities, but other cases have been left to the voluntary action of friends. The vast majority of those who have received, treatment in the asylum have been sent and received with no other warrant than their manifest need of its benefits, and the superintendent in his action has accepted the request of friends and relatives as his sufficient justification.
That the system has worked well thus far is demonstrated by the fact. that this is the first instance in which complaint of it appears in our records. Nevertheless there are possibilities in it which must not and cannot be overlooked. The facts in the present case show that it is entirely possible for complete strangers to seize upon a woman, forcibly take her into railroad cars, carry her a long distance without interference on their mere assertion that she is mentally unsound, and place her within the doors of the asylum where again the allegation of insanity must to some extent predispose the minds of those receiving her to turn a deaf ear to her protests. Indeed,, when we admit that such things are possible, we concede that other things still more dreadful are also possible; but we shall not stop to contemplate, or even to suggest them. If the law permits this, we must take it with all its possible evils and abuses.
[126]*126The defense insist that everything done in this instance, if the woman was insane, was lawful; and that if in point of fact a mistake was committed in supposing her to be insane when she was not, nevertheless the defendant cannot be held responsible, as he has acted in a public capacity, with undoubted and unquestioned good faith. The alternative of the plaintiff’s sanity I shall pass by for the present, to consider whether, supposing her to be insane, the defense relied upon is made out.
I understand the counsel for the defendant to maintain the following propositions:
1. That insanity is a disease of which medical men are the best and in all uncertain cases the only competent judges, and that the determination of questions of sanity and the care and custody of the insane for that reason naturally and properly falls to them.
2. That insane persons are dangerous to others from their propensity to commit mischief, which they are hable at any moment to manifest though it may never have been exhibited before; and that therefore the State through its organized action, or any member of the political society, without other warrant than the imperious law of self-defense, may restrain their actions, and when no other restraint is provided, may properly remove them to the retreat the State,, has provided for their benefit.
3. That the helpless condition of insane persons, and the possibility of cure which is present in the early stage of most cases, imposes upon their relatives the solemn duty to take steps for their cure by placing them in the institutions specially provided for their treatment, and clothes them with all necessary power for the purpose: that they may restrain them of their liberty with a view to their cure as they might a person in the delirium of fever, or one who, in any case of mere bodily disease, was in danger, either purposely or through ignorance or temporary loss of prudence and discretion, of inflicting or causing self-injury.
4. That while in any case it might be proper to [127]*127have an inquisition of sanity before restraint was imposed if no reasons forbid, yet that the institution of such proceedings must generally be exciting and disturbing to the deranged intellect, and therefore harmful, and consequently cannot be required by the law, which demands only what is reasonable.
5. The conclusion is that restraint of insane persons in asylums is lawful, and being lawful, the placing them there, whether it be done by way of protecting the persons or property of others, or for the benefit of the insane persons themselves, is in itself due process of law, though there may have been no judicial investigation whatever.
I have formulated these propositions in my own language, but I understand them in substance to be advanced and maintained by the defense. To some of them I can render full and hearty assent. The members of the medical profession are undoubtedly the most competent, and in many cases the only competent judges of insanity. It would be nonsense to deny this, and unjust to admit it with hesitation and cavil as some do.
The careful study of the phenomena of insanity is confined almost exclusively to learned and humane members of this profession, and it would be gross ingratitude in society and in the State, if it were not ungrudgingly admitted that the amelioration of the condition of this unfortunate class, by relieving them of the barbarous and inhuman restraints to which ignorante formerly subjected them, and giving them the humane, soothing and healing treatment of comfortable asylums, is due mainly to the investigations and labors of this profession. But I cannot admit that because one is a practitioner of medicine, it is therefore proper or safe to suffer him to decide upon mental disease, and consign people to the asylum upon his judgment or certificate. While the high character of a large proportion of the medical profession, their learning, their self-devotion and humanity, entitle them to our highest respect and confidence, and [128]*128give to their conclusions in questions of medical science a weight that must generally challenge conviction, we cannot for a moment shut out from view the fact that the law throws wide open the doors of that profession, and that the ignorant jostle the learned in entering it, the unworthy have equal rights with the high-minded and humane, and it is not uncommon that the most unfit succeed for a long period in imposing upon the public. By no means known to the existing laws can it be rendered reasonably certain that, in the absence of public investigation, questions of insanity will be considered by competent persons and mistakes guarded against by those who are fit to judge.
Nor even when the investigation is public and conducted with the assistance of experts do we fail to encounter difficulties of the most serious nature, arising from differences of opinion among those who are called to give scientific evidence. In every case where the evidences of mental disease are obscure, opinion is certain to be divided, and we are brought face to face with this conclusion, that if physicians exclusively were to deal with the case, the person would be turned over to the asylum or discharged as sane, according as one physician rather than another happened to be called in as the adviser. If the liberty of the citizen must depend upon such accidental circumstances, it ought very clearly to be made to appear either that the safety of society requires that such perils should be encountered, or that adequate protection to those who are really insane admits of no better course.
The safety of society, it is said, does demand that every insane person should be placed under restraint, because the going at large of every such person is dangerous to others, and for self-protection they may be restrained by others without awaiting any judicial hearing. Moreover, it is further said, for their own good they should be restrained, in order that they may be treated for their malady and if possible cured; and [129]*129this should be allowed without a preliminary inquisition, because the inquisition itself must be exciting and injurious to the subject of it, and tend to defeat the very purpose for which it would nominally be had. These are important positions, and they deserve thoughtful attention. For myself I cannot assent to the proposition that the going at large of a person who is mentally disordered is in every ease dangerous. It is a proposition that contradicts common observation. Many insane persons, even 'after they- have become hopelessly so, are to all appearance perfectly harmless, and for years continue to discharge the common duties of life -in the most regular. and acceptable manner, being trusted by every one in those particulars to which the insane delusion does not extend. The law takes notice of the fact that in many cases the disease leaves the person in the responsible possession and control of most of his faculties, and that the same motives influence his action in the employment of them, that influence those .not thus afflicted; in short, that the delusion is confined, to a single subject or group of subjects, and in other respects leaves the person rightfully entitled to control his own actions. It may nevertheless be perfectly true that in every one of •these cases there are possibilities of danger from the disease which circumstances have not yet brought out, and that every insane person may in a certain sense be considered'.a dangerous person, because he is more liable to sudden and unexpected manifestations of .dangerous cunning or violence than a sane person, would be.. But conceding this does not fully, meet the .case. Whoever takes into his own hands so serious a responsibility as the confinement of a- citizen upon his own judgment - merely, assuming it to be necessary in self-defense, must show that, upon the evidence, danger from his being at large was not merely possible, but was probable. Many sane persons, under the influence of strong excitements are subject to serious and perhaps dangerous fits of passion; but another could not be [130]*130allowed, on this ground alone, to seize and imprison them, in anticipation that possibly the occasion for excitement might arise and the passion be manifested. A rule permitting this would introduce intolerable disorder.
Nevertheless I agree with the defense that it is not essential that a judicial hearing and determination should be had in every instance before an insane person can be admitted to the asylum. I concede that the right to restrain these unfortunate persons for their own benefit or for the protection of others is as clear as the right to restrain one who in the delirium of fever would break away from his attendants, or one who, with a contagious disease upon him, should attempt to enter a public assembly. But the first thing to be determined is whether there is insanity in fact; and in any case where that is open to possible question, prudence would dictate a judicial investigation unless the reasons against it are so imperative as not to admit of the necessary delay, or unless the investigation would probably be so far damaging to the subject of it as to more than counterbalance the probable benefits. It is no doubt true that a trial of the fact would be more or less exciting and disturbing to a- mind already in a diseased or abnormal condition, but that the consequences would be more serious than those likely to follow from the sudden arrest and removal for confinement in the asylum of a person who believes himself perfectly sane is by no means certain. An insane person does not necessarily lose his sense of justice, or of his right to the protection of the law; and when he is seized without warning, and without the hearing of those whom he might believe would testify in his behalf, and delivered helpless into the hands of strangers, to be dealt with as they may decide within the limits of a large discretion, it is impossible that he should not feel keenly the seeming injustice and lawlessness of the proceeding.
The great defect, however, of all reasoning in favor [131]*131of confinement without legal investigation, is ■ that it assumes the person to be insane. Being insane, it is said, he ought not to be subjected to the excitements of a public and perhaps prolonged investigation. But suppose he proves not to be insane; are there no consequences still more serious to be looked for, from exposing him to the excitements of a sudden seizure and incarceration without a hearing, and a prolonged detention among persons unquestionably insane? In this very case the man who seized and imprisoned this woman did so upon evidence of mental disease which, if he were a prudent man, he would not have acted upon in any important money transaction; the mere word of one or two persons who might, for aught he knew, be interested in making a false case for the purpose. Such treatment, in the case of a sane person of a highly sensitive physical and mental organization, must necessarily have a powerful tendency to induce the very condition which the arrest and confinement assumes, and if the law would permit it, the possible wrongs in individual cases would be nothing short of the destruction of the intellect itself.
. It may be said with perfect truth that a public investigation is no very satisfactory or certain test of insanity, and that the superintendent of the asylum is much more competent to determine the question than the. average judge or jury. But safety is not found in the competency of the tribunal merely: it is the publicity of the proceeding, and the opportunity that is afforded for meeting a fictitious or deceptive case that constitute the chief protection. There is always danger that a secret investigation shall be made by those who manage it, to reach the conclusion desired, irrespective of the real facts; and the intelligence of the tribunal can constitute but an imperfect protection. Indeed, .if one is to be judged unheard,, he must be condemned almost as a matter of course in any case where upon the facts there could be two opinions; and those are the very cases in which [132]*132investigation ought to be careful, particular and thorough in proportion to the gravity of the consequences of error.
But other difficulties in proceeding without judicial inquiry are also serious. If an insane person is to be confined on the ground that his going at large is dangerous to the community, any one person has the same right to pass judgment upon his case as any other, and when opinions differ respecting the necessity for restraint, one person may bind and another release the subject of their conflicting opinions at discretion. Such a condition of things could not be tolerated. The difficulties are the same in kind* when the unqualified right of the family to remove a member to the asylum for his own. advantage is conceded. In law it becomes necessary carefully to prescribe the limits of judicial authority, so that each tribunal shall act with unquestioned right within its own proper bounds; and shall be wholly excluded from the jurisdiction of others. This is necessary for the protection of all classes of officers; those who judge and those who are to execute their judgments;' the latter class are entitled to know precisely what their duty is so that they may proceed to perform it without peril. But between the different members of a family proceeding to act upon their own opinions, the clashing of authority must be imminent in every case not perfectly clear and unquestionéd. One part of the family may believe in an insanity which the other denies, and when the one rightfully confines, the other may rightfully demand the discharge. Nor in this family jurisdiction can the judgment of the supposed insane person be excluded, for until his insanity is determined he has the same right to judge-that the others are insane as they have to judge that he is. It may happen — as indeed it sometimes has happened — that he will succeed in successfully accusing his accusers. In this case the son-in-law succeeded in placing the mother-in-law in the asylum. There is some-reason from this record to believe that he has not had [133]*133the education and the advantages of intercourse with the world which she has possessed; and had he accompanied her to the asylum and attempted to deliver her there, it is quite within the limits of possibility that this woman, who if she is insane, has certainly exhibited remarkable skill and power in convincing others that she is not so, might with her superior address have succeeded in delivering him over as the disordered person who needed the treatment of the asylum. To say that the supposition is purely fanciful, and that the imposture would at once have been detected, is to deny that there can be a case which cannot be at once and correctly diagnosed ; and that is to deny what is proved by common observation. The assertion that one is insane, when made by a member of the family, must always impress somewhat the minds of others, and the shock of the charge to the subject of it is not unlikely to lead to excited conduct which shall give to it some color of plausibility. Time, and patient observation and examination might be required to remove the impression, and meantime a great wrong would be done, and the purpose of the asylum in the particular case be wholly defeated.
It is true that the difficulties suggested did not exist in this case, for here the daughter assented to Mrs. Newcomer being placed in the asylum, and in the family no conflict of opinion was expressed. I put aside as wholly unworthy of a moment’s attention the ex post facto assertion of the daughter that she was deceived into assenting by being told that her mother was to be taken as a sane person to the asylum for medical treatment; if the fact were so, she had abundant opportunity to correct the error, which she failed to embrace. There is no room for any question whatever that during all the time Mrs. Newcomer was in the asylum Dr. Van Deusen had reason to believe that he was detaining her there in accordance with the desire of her family and because she was insane. And in my opinion, if she was insane in fact, he was justified in so detaining her, for her own benefit and with a [134]*134view to medical treatment, under the facts as they were made known to him. A previous finding of insanity would have been a prudent proceeding, but it was not indispensable if the insanity actually existed and was not disputed in the family.
But I understand the defense to go further and insist that even if Mrs. Newcomer was really sane, Dr. Yan Deusen, if he has acted in good faith, is not responsible in damages for her confinement. What in that case is the alternative is not very clearly pointed out by the defense. It cannot be that no one is responsible. The law of no free country can tolerate a condition of things under which a person innocent of crime, and threatening no injury to himself or to others, can be restrained of his liberty, and no person be responsible for the injury he suffers. To admit the possibility would be to concede that arbitrary imprisonment under some circumstances is lawful; and that would be to concede that regulated and protected freedom does not exist. But if the superintendent is not responsible, we look in vain for adequate responsibility anywhere. No doubt the abductors are liable, not only for what they did, but for whatever has been done by others under their express or implied direction; but a new agency takes part in the confinement, and the immediate responsibility must be upon some one having authority where the confinement takes place. If it is not the superintendent, it must be either the trustees of the institution, or the State itself, as the controlling board or authority. But there is only one theory on which either the trustees or the State could be held liable ; and that is, that the superintendent was their agent and servant, and committed the wrong in the actual or supposed execution of their orders. I need not pause to give reasons why this theory is wholly inadmissible; it is sufficient for the purposes of this case to say, that admitting the responsibility of the trustees or of the State would not in any degree relieve the superintendent; for the servant may always be made to respond individually [135]*135for his own trespasses, even though in law they be imputable to his superior also.
If therefore Mrs. Newcomer was sane when placed in the asylum, what can be said on behalf of the superintendent is, that acting in perfect good faith, and influenced only by public and proper motives, he has committed a mistake through which this woman has been greatly wronged. Do his good faith and correct motives excuse the mistake? — is the question now. The exact position and authority of the superintendent of the asylum are not so well defined that serious questions concerning them may not arise. But I think he is to be classed with the public officers of the State, and is entitled to all the advantages and protections which the law accords to officers performing analogous duties. The legal protections which the law accords to officers must depend largely upon the nature of their duties; whether they are ministerial merely, or are discretionary or judicial. If they are ministerial, the officer has a line of duty clearly marked out for him, and he must follow it at his peril; if they are judicial in the full sense, the very nature of the authority is inconsistent with civil responsibility for mistakes in judgment. Legislators cannot therefore be sued in tort by dissatisfied constituents, nor judges by dissatisfied suitors. There are, however, a class of duties which in a qualified sense are judicial and in another sense are ministerial, where the officer is required to do-certain acts with limited powers to pass his own judgment upon the rights of others. In such eases the officer has been held exempt from responsibility where he has acted in good faith, however great his error, but liable where another has suffered from his ignorance or his malice. That rule of responsibility was laid down in this State in the case of Gordon v. Farrar, 2 Doug. (Mich.), 411, where. election inspectors were sued for refusing to receive a ballot from one who claimed a right to vote. The same rule has been applied in election cases in several of the States. State v. M’Donald, 4 Harr., [136]*136555; Miller v. Rucker, 1 Bush, 135; Carter v. Harrison, 5 Blackf., 138; Goetcheus v. Matthewson, 61 N. Y., 420; Weckerly v. Geyer, 11 Serg. & Rawle, 35: Dwight v. Rice, 5 La. Ann., 580; Rail v. Potts, 8 Humph., 225; Wheeler v. Patterson, 1 N. H., 88; Peavey v. Robbins, 3 Jones (N. C.), 339; Fausler v. Parsons, 6 W. Va., 486. It has also been recognized in a variety of other cases, such as 'that of a school board removing a teacher, Burton v. Fulton, 49 Penn. St., 151; or expelling pupils from school, Donahoe v. Richards, 38 Me., 379; Stewart v. Southard, 17 Ohio, 402, and in other analogous eases. Ferriter v. Tyler, 48 Vt., 444; Billings v. Lafferty, 31 Ill., 318. There is force in the suggestion that if such officers are entitled to be sheltered under the protection of them good faith, the superintendent of this asylum has a like right.
There are cases in which the powers which the superintendent necessarily exercises seem to be judicial. I allude particularly to the case of patients received when insane, and improved and supposed to be cured by the treatment they have received. The time comes when such persons are entitled to their discharge, but exactly when it has arrived the superintendent must in the first instance decide. Should he maliciously continue the confinement after a cure had been effected, he would rightfully be held responsible; but if through error in judgment he failed to discharge the patient, he might with great justice claim the benefit of the rule which under corresponding circumstances protects officers who exercise authority of a quasi judicial nature. But under such circumstances the superintendent is dealing with a case in which insanity having unquestionably existed, a presumption of its continued existence favors his action. The case before us was not of this character. There was no presumption against the sanity of this woman when she was placed in the asylum, and the question on this part of the case must be whether the superintendent was- vested with any authority to pass judgment upon her insanity in a manner that can protect him.
[137]*137Upon that subject it appears to me that I need say no more than this, that neither the constitution nor the statute has undertaken to give him the authority, nor in my opinion could it be given to him or to any other tribunal with the privilege of proceeding secretly, and without giving to the alleged non compos and his friends the opportunity to produce evidence to show that the allegation of insanity was unfounded. The privilege of defending the intellect is as sacred as the privilege of defending life itself, and it is not to be lightly assumed that the Legislature has ever intended to confer it upon a single officer acting .ex parte. The powers actually conferred upon this office, are clearly administrative and limited, and like all corresponding officers, he must at his peril keep within their limits. The hardship of this is not special and peculiar to his office. The sheriff commits an actionable wrong when by mistake he arrests the wrong person, or levies on property not belonging to the defendant in the writ: the magistrate may commit a similar wrong in honestly asserting a jurisdiction he does not possess; the assessor in mistakenly imposing a tax upon a person not within his jurisdiction; the military officer in enforcing military law under error regarding his legal powers, and so on. All officers are liable to similar errors, but the rule of law, no less than the rule of justice, is that he who commits the mistake shall bear the consequences. The opposite rule would invite outrage and wrong instead of tending to prevent them, and would therefore be wholly inadmissible. Purity of motive should protect the officer against excessive damages, but individual rights must have settled and definite rules of protection, and cannot be left to depend upon the opinion of an officer as to what he may or may not do in abridging them.
The English system for the treatment of the insane has been brought to our attention, and some things said in its favor in official reports have been read. It is a system of private asylums with rigid public super[138]*138vision, and no doubt it has subserved an admirable purpose. But it is susceptible of the grossest abuses, and those who praise it as a great public benefaction must nevertheless concede that serious individual wrongs are not only possible but probable under it. The fact is patent that under that system it is for the interest of those who have charge of the insane to prolong confinement rather than to shorten it; to nurse disease rather than to cure it; perhaps even to confine persons not insane at all, when malice and cupidity deliver them over. The people of this State reject that system; not for its advantages, but because they would have its advantages without its liability to abuse. They would have the insane confided for treatment to those whose humane sentiments and sense of duty shall not be bribed to abuse by self interest. But they have given to the asylum authorities no jurisdiction whatever over sane persons; and nothing ought to be more certain in the administration of the State’s benevolence than that a sane person never passes behind the doors of its asylums as a prisoner. This can never be the case so long as a woman can be seized by a stranger, transported across the State, and delivered to its authorities without any warrant or symbol of authority, and yet with a grasp apparently as firm and inexorable as though the majesty of the law accompanied him, and enjoined implicit acquiescence upon every one whom he might encounter on the public conveyances.
But I think the circuit judge was in error in applying to the case the rule of responsibility which is applied where several persons are joint participants in the same wrong. The theory of the prosecution seemed to be that Dr. Yan Deusen was the keeper of a great prison into which he made it his business to entrap and confine weak and helpless people; that for this purpose he entered into conspiracy with wicked and depraved people outside; with children who would get rid of their parents in order that they might seize upon their property; with [139]*139men who quarrelled with their wives’ relations and would rid themselves permanently of the disagreeable association ; with any man who had animosities to gratify, and found the mad-house the most convenient means for the purpose; and that he stood at the door of this hideous place of confinement ready to seize and thrust into its hopeless cells every victim whom avarice or malignity might entice or drag within his reach. He has therefore been punished in this case, not for the confinement merely, but for the malice of the son-in-law and his relations, and for conduct of others to which he was a total stranger. All the little circumstances of the affair from beginning to end which tended to show misbehavior in others have been carefully collected and arrayed in a striking light as appeals to the sympathies of the jury against him, and their whole force has been thrown against the very person who it is conceded, has acted in good faith throughout, and whose benevolent intentions cannot successfully be disputed. Indeed, one might infer from his being selected as the person tó be punished for the wrong done by all, that his good faith was supposed to aggravate the offense rather- than to mitigate it, and that an error of judgment in one whose motives were of the highest benevolence, was more culpable than the malice or cupidity which had brought about the error by their unfounded accusation.
Had all the parties concerned been joined as defendants, it may possibly be that under the technical rules of law it would have been impracticable to separate the act of the superintendent from that of the others, and hold him responsible for his own conduct only. The law in general refuses to apportion the consequences of a wrong as between wrong-doers, and had the suit included as defendants all the parties concerned, possibly it would have been necessary to render judgment for the same damages against all. But Dr. Van Deusen has been sued alone. If he is guilty of any wrong it is of the wrong of confining the woman in the asylum. He was [140]*140wholly unconnected with all that preceded, and was as much a stranger to it, either in intent or knowledge, as any. other citizen of the State. The- abduction of this woman was not his fault in any sense. If in any other action he might, under somewhat harsh and technical rules of law be held responsible for it, in this action, which proceeds for his own misconduct, his responsibility should be held to begin where his connection with the case begins. He received the woman at the door of the asylum knowing nothing of what had preceded, and his fault, if fault there was, dates from that moment. Others are justly responsible with him for the confinement, because ■they procured it, but he is not justly responsible with them for the abduction, because he had nothing to do with it whatever. He was a public officer, who believed that his duty called upon him to act as lie did at that , time under the’ circumstances; if he erred in judgment on the circumstances as they appeared to him, he is liable, though his motives were pure; but it would be wholly inconsistent with the rules of responsibility for legal wrongs to hold him liable for the conduct and malice of others with which he was only connected by succession of events, and not otherwise.
In what is above said I have assumed that Mrs. Newcomer when brought to the asylum denied her insanity, so that the restraint was substantially against her protest. If it should appear on a new trial that such was not the fact, I agree with Mr. Justice Campbell that the superintendent was justified in receiving her as a patient.
Campbell, C. J.
The views more fully expressed by my brother Cooley upon the main legal question, as to the liability of the superintendent, in which I substantially concur, will render it unnecessary for me to say any more than will suffice to explain some views which have governed my conclusions.
The plaintiff in error has not been, and I think, could [141]*141not be, made a final arbiter of the correctness of his own action. That would make him a judge in his own case, and deprive parties ■ secluded by him of necessary legal-protection. Unfortunately our laws have made no special provision for action by any public officer in cases of private persons who are not paupers, and who are not under guardianship; and- in such unprovided cases there is no alternative left to the superintendents of our asylums except to act on their common law responsibility. I "have no doubt that the regular certificate of any public officer who should be intrusted with the duty of conducting investigations in such cases would be a. complete justification to a superintendent acting on it in good faith. The present case shows that it is important for the welfare of our public institutions that their managers should be protected from any undeserved vexation.
The proceedings to determine the capacity of persons to' be left at their own disposal, or put under the care of others, while in a certain sense they are somewhat analogous to ordinary judicial inquiries, may be summary, and are not necessarily long or troublesome;- and they can always be conducted with as little notoriety and annoyance as is consistent with public and private safety. They certainly need be no more annoying than the removal and seclusion of unwilling parties. But it certainly cannot'be tolerated that persons who may be sane should be deprived of legal protection upon the risk that persons actually insane may be unduly excited by such legal steps. The danger is largely imaginary, but whatever may be its extent it must not be made a pretext for secluding persons who may be sane.
'The law has but one test of insanity, and that is whether a person is compos mentis, or capable of exercising rational self-control. If not so capable those who have by relationship or otherwise become the actual and proper custodians of the person who is non-compos may i'&wfully place him in a public asylum for treatment, and W superintendent may lawfully receive him. Having [142]*142so lawfully received Mm, he may lawfully retain Mm while in good faith he believes him insane, unless discharged by habeas corpus or by the request of his friends.
Nothing but actual insanity will authorize the seclusion of one who makes known his objections and claims against reception. If no objection is made by a sane person to his own seclusion he cannot complain of it afterwards.
The authorities are uniform that there must be consent or actual insanity. King v. Coate, Lofft, 73-76; Brookshaw v. Hopkins, Lofft, 240; In re Shuttleworth, 9 Q. B., 651; Rex v. Gourlay, 7 B. & C., 669; Anderdon v. Burrows, 4 C. & P., 210; Rex v. Turlington, 2 Burr., 1115; Rex v. Clarke, 3 Burr., 1362; Scott v. Wakem, 3 F. & F., 328; Symm v. Fraser, 3 F. & F., 859; Hall v. Semple, 3 F. & F., 337; Fletcher v. Fletcher, 1 Ell. & Ell., 420; Ex parte Greenwood, 24 L. J. Q. B., 148; Denny v. Tyler, 3 Allen, 225; Look v. Dean, 108 Mass., 116; Colby v. Jackson, 12 N. H., 526; Davis v. Merill, 47 N. H., 208.
For the purpose of treatment in an asylum, it is certainly not necessary that, in addition to insanity, there should be evidence of danger to the lunatic or others beyond what is implied in the insanity itself. For other purposes not designed for the care of the patient, imprisonment could not be justified probably without some danger. It is always justifiable in such cases. Lott v. Sweet, 33 Mich., 308. But no such danger was necessary to be shown here.
■ Dr. Yan Deusen was, in my opinion, fully justified if Mrs. Newcomer was not sane, or if she made no plain objection which he was bound to regard, so as to call his attention to her claim of sanity.
If she was insane then there was nothing to make out any cause of grievance whatever. And if she was sane there was no testimony in the case which could properly make Dr. Yan Deusen responsible for any act of her relatives or their agents, or for anything beyond [143]*143what was necessarily incident to the confinement in a properly regulated asylum. The rules and regulations were all shown beyond dispute to be proper, and if any other person in the asylum without his procurement did acts of an improper character, he cannot be bound to respond for them. There was no evidence legally tending to show conspiracy or bad faith in plaintiff in error, and the testimony of insanity was very strong. And I cannot avoid the belief that unless the jury had been instructed that Mrs. Newcomer could not be confined unless dangerous as well as insane, no verdict could have been rendered against Dr. Yan Deusen.
Much irrelevant matter was introduced, and some rulings were had upon professional evidence and other points which were objectionable, but which are referred to by my brother Marston, with whom on these points I concur.
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