I think that the meaning of the first article ■of chapter 446, Laws 1874, cannot be understood without reference to some ¡statutes which were in existence when it was passed, and some of which are in existence now. Bev. St. pt. 1, c. 20, tit. 3, is of the safe care and keeping of inmates. Section 1 provides that when a person is so far disordered in his senses as to endanger his own person, or the person or property of others, if he lias sufficient property it is the duty of his committee to confine him. Section 2 provides that, if such person is not of sufficient property, the like duty rests „ on certain relatives, if they are able. Section 4 provides for the case of refusal or neglect, as aforesaid, or of want of means. It authorizes the overseers of the poor to apply to two justices. If they are satisfied it is dangerous to permit the lunatic to go at large they are to issue their warrant to the constables and overseers, commanding them to apprehend and confine the lunatic. Section 12 provides that previous sections do not affect the power of the chancellor. ■Chapter 135, Laws 1842, § 20, provided that, under the statute above cited, the lunatic should be sent in 10 days to the lunatic asylum, or some other private ■or public asylum, etc. And section 21 gave to any lunatic or his friend a right of appeal in three days to a judge who might call a jury, and, with the aid ■of two physicians, decide on the fact, and either discharge or confirm the order. ■Section 22 forbade justices, superintendents, and overseers, under the said title of the Bevised Statutes, to order or approve without the evidence of two reputable physicians in uniting. This title of the Bevised Statutes seems to be ■unrepealed. Whether the act of 1842 is repealed or not I need not inquire. It is enough to notice that these sections 20, 21, and 22 did not establish a system for the apprehension and confinement of lunatics. They only placed *342safeguards and restraints' around the powers given by the Bevised Statutes, We now come to chapter 446, Laws 1874. We shall find in like manner that-while this statute in article 1 embodied several of the provisions of the act of 1842, it did not establish a system of apprehension and confinement, but imposed restrictions and safeguards on the power given by the Bevised Statutes. Thus, section 1, requiring the certificate of two physicians, is substantially section 22 of the act of 1842. Sections 2 and 3 are only restrictions as to the-character of the physicians. Section 12 requires certain relatives to confine-such lunatic if of sufficient ability. This is the same with section 1 of the-title of the Bevised Statutes, and applies to a dangerous lunatic, as is quite-apparent. Section 6 gives the overseer of the poor a right to apply, in case of neglect of a committee or of friends, to a judge in accordance with section 4 of the title of the Bevised Statutes. But it will be seen on careful examination that nowhere in the statute is authority given on the mere certficate of two physicians, approved by a judge, to apprehend and confine any one. TheBevised Statutes above cited place the duty of confining dangerous lunatics on, the committee and on relatives. In case of neglect or inability they place-this duty on the overseers. The statute of 1874 puts the restriction that no-confinement shall be made without the certificate provided for, but by no means declares that such certificate is sufficient authority. Bow if we look at the Bevised Statutes we shall see that it is not every lunatic who may be confined. It is one who is “furiously mad, or so far disordered as to endanger,” etc. Section 1. And this idea is continued in the article of 1874, §§ 6, 8,9, 11. If we turn again to section 6 of the act'of 1874, which gives overseers the right to act in case of neglect of the committee, etc., and then inquire when the committee, etc., have neglected their duty, we must turn to section 1 of the-title of the Bevised Statutes to learn what their duty is, and that section has-just been cited. It is when the lunatic is “furiously mad,” etc. It appears-to me that the Bevised Statutes wisely based the ground of confinement on, danger to himself or others, and I see no authority to carry the restraint further than when such danger exists.
I am, then, not ableto bold that the certificates of two physicians, approved by a county judge, are of themselves authority to apprehend and confine a? lunatic. Such certificates and approval contain no order or direction to any one. They are addressed to no one. They command nothing. If they authorize a jailer to act and apprehend and confine, they equally authorize any other person;'and if we turn to section 11, which provides for the appeal, we-shall find that if the jury do not find the appellant sane the “judge shall confirm the order for his being sent immediately to the asylum.” What order can be confirmed where none exists?
I have gone over these statutes at length, because I think a dangerous laxity has prevailed. In this very case the plaintiff was not confined by bis-committee, for there was none, or by his relative, or on the application of the-overseer of the poor. In fact no person authorized to act originated the pro- ' ceeding. There was no evidence that he had not sufficient means, and none-that he was furiously mad, or so far disordered in his senses as to endanger his own person, etc. It seems to me that the statutes do not place the right, in the hands of-any man who may assume it to apprehend and confine an alleged lunatic, or to initiate proceedings for that purpose. I do not mean to-say that the committee of a dangerous lunatic may not confine him. TheBevised Statutes make that his duty. Before doing that, he possibly must obtain these two certificates and the judge’s approval, although the old principles gave him full power over the lunatic after “office found. ” Bor do I deny the power of the relatives to do the same, having first obtained the certificates and approval, acting, I suppose, at their peril; but when none of these parties act, then the proceeding must be under section 6. There must be a decision of a judge that the lunatic is dangerous, and a warrant accordingly.
*343I have stated these views not because I dissent from the result reached by my Brother Landon. I agree with him that the act of the recorder was so' far judicial that he is not liable to the plaintiff. I agree with him also that,as this demurrer admits that the physicians were negligent, they are liable for" their negligence, as they would be for negligence in any other matter of their practice. Of course, what may be proved on the trial, we cannot say.