strained 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. . . . 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 cases 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. . . . 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, Donahue v. Richards, 38 Me. 379; Stewart v. Southhard, 17 Ohio, 402, and in other analogous cases. Upon 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. . . . 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 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 lawfully place him in a public asylum for treatment, and the superintendent may lawfully receive him. Having so lawfully received him, he may lawfully retain him 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. . For the purpose of treatment in an asylum, it is certainly 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 such danger. It is always justifiable in such cases. Lotts v. Sweet, 33 Mich. 308. But no such danger was necessary to be shown here. Dr. Van 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. Van Deusen responsible for any act of her relatives or their agent, or for any thing beyond what was necessarily to the confinement in a properly regulated asylum. . . . 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.1 Topic 3. Defence of Personalty SUB-TOPIC A. BY BATTERY 570. CHARLES VINER. A General Abridgment of Law and Equity. (2d ed., 1793, Vol. XX, p. 433.) "Trespass " (G, 1). In trespass, the defendant shewed that the plaintiff would have taken 6d. of the money of the defendant's fr m him, and he put his hands upon him, and did not suffer him. And by the Justices: If a man takes my goods, I may put my hands upon him, and disturb him, and if he will not leave, may beat him rather than suffer him to carry them away. By which the plaintiff said that de son tort demesne absque tali causa; and this was trespass of battery. Brooke, Trespass, pl. 185, cites 9 E. IV, 28. 571. EYRE v. NORSWORTHY NISI PRIUS. 1831 4 C. & P. 502 THE declaration stated that the defendant, on the 12th July, 1830, assaulted the plaintiff, and "with great force and violence cast and threw to, at, and against the plaintiff, a certain stone and missile, and thereby and therewith gave at and struck the plaintiff. Replication-De injuria. It appeared, that, on the 12th of July, a ship, called the John, of 464 tons (of which the defendant was master), was coming up the river Thames to St. Katherine's Docks laden, and towed by a steamer, when several boats, the plaintiff's among the number, were fastened to the stern of the vessel, for the purpose of getting conveyed expeditiously along. The defendant, finding that the progress of the vessel was retarded, and that the boats caused it to sway, and prevented it from answering the helm properly, and fearing that the effect would be the running it ashore, ordered the persons in the boats to disengage them, and, for the purpose of compelling them to do so, threw from the ship a stone, which struck the plaintiff on the head, and wounded him. There was contradictory evidence as to the conduct both of the plaintiff and defendant, the witnesses on the part of the plaintiff swearing that his boat was actually loosed at the time the stone was thrown; and 1 [PROBLEMS: The defendant assaulted his wife and would have killed her; she cried "Murder!"; the defendants broke into the house, captured him, and after a short time, believing that he still intended to kill his wife, took him out and delivered him to a constable. Was this justifiable? (1800, Handcock v. Baker, 2 B. & P. 260.)] those on the part of the defendant swearing that it was not loosed, and that the defendant did not throw the stone till after he had several times desired the boats to be unloosed, and the plaintiff had used very abusive language. It appeared that the stern of the vessel was much too high for any one on board the vessel to cut the ropes, and that it would have been very difficult at the time to have lowered any persons for the purpose of doing so. It also appeared that it was a general practice for boats to be fastened a-stern of vessels coming up the river, and that, in general, objection was not made to the practice. TINDAL, C. J. (in summing up), after stating the special pleas, said: The point which you have to consider is this, Was the act done by the defendant absolutely necessary in order to cause the boat to be cast off? The law allows a person, when a trespass is committed upon him, to protect himself without unnecessary violence. In all the cases in which such pleas of justification are used, the means are to be such as would, in their natural and ordinary course, produce the effect. Now what necessary connection is there between the throwing of a stone, and the casting off of a rope? On the contrary, the throwing of the stone might have disabled the man from doing the very thing which it was intended to effect. ... There is also another point. The pleas state that the object could not be effected by any other mode. It will be for you to say whether that was so, and you are not limited in your consideration to the precise moment at which the act was done. Why might not the defendant, before he came to the pinch of the danger, have compelled the plaintiff to let go by some other mode? Why could he not have stopped the steamer? Why could he not have put an end to the thing before the danger occurred? A pilot, standing on the shore, did, it seems, foresee the danger. (The pilot was called up, and said that the steamer could not have been stopped). Lastly, why could not the defendant have lowered a person to cut the rope? The pilot says, it was difficult, but it was not impossible. It might be impossible at the moment, but why was it not done before? The points for your consideration are these - First, are you satisfied that, in its natural and necessary consequence, the throwing of a stone tends to loosen and disannex a rope? If you are not, then you will find for the plaintiff. And, secondly, if you think, that there was any other practicable mode by which the effect could have been produced, in that case also you will find verdict for the plaintiff. Verdict for the plaintiff. Damages, £10. Andrews, Serjt, and Crowder, for the plaintiff. Wilde, Serjt., and C. Phillips, for the defendant. ERROR to Circuit Court, Calhoun County; CLEMENT SMITH, Judge. Action by Paulina Hamilton against Adam C. Arnold. The case was prosecuted to judgment against defendant during his lifetime, and M. V. Barker, his administrator, brought error. Affirmed. Herbert E. Winsor, for appellant. William & Lockton, for appellee. MONTGOMERY, J. This action was for an assault and battery alleged to have been committed on plaintiff, and was prosecuted to the judgment against Adam C. Arnold in his lifetime. His adminstrator has procured a bill of exceptions to be settled, and brings error. ... The facts of the case developed at the trial were these: Plaintiff and her husband resided on lot 88, block 4, Battle Creek. The defendant was the owner of the adjoining lot 87. The exact location of the line was disputed. On the disputed land there were three plum trees. The plaintiff and her son were, on the day of the alleged assault, gathering plums from one of these trees. The defendant, accompanied by a deputy sheriff, came on the scene, and, as plaintiff's testimony tends to show, found plaintiff with a pan partially filled with plums, standing on a portion of the lot occupied by herself and husband, and outside the disputed territory, and seized hold of her. Plaintiff also claimed that the defendant had given her permission to gather the plums. . . . Complaint was made of a portion of the instruction reading as follows: "If you should find that Mrs. Hamilton had no right to the plums whatever, yet in picking and taking them away she was doing so by no manifestation of force, then the defendant would not be excusable in using force or allowed legally to do so;" and it is said that this instruction was erroneous, for the reason that, even though the plaintiff was inactive, the defendant had the right to use force sufficient to reclaim his property. This is, in the abstract, correct, and, if we were satisfied that the jury could have been misled by this instruction, we should feel constrained to reverse the case, as we cannot affirm its technical accuracy. But a review of the charge, when taken in connection with the proofs in the case, convinces us that the jury could not have been misled. . . . [Other parts of] these instructions given were as follows: "If the plums, which are the property in question in this case, belonged to the defendant, and the plaintiff was attempting to remove them without consent or lawful authority from the defendant, and they belonged or were under the control of defendant, he had a right to prevent her from so doing. . . . Defendant would have no right to use more force than was reasonably necessary, under all the circumstances, to retake them; and, should you find that he did use more force than was reasonably necessary, he would be liable for such ... |