refused to discharge the defendants, Gris-com, Garrett, Worthington, Wistar or Warder; but charged the jury that there was no evidence against Dr. Charles Evans or Anna W. Hinchman, and directed them to bring in a verdict of “ not guilty ” as to them.
The jury rendered a verdict in favour of Dr. Evans, but refused to discharge A. W. Hinchman.
The defence set up was that Morgan Hinchman, at the time of his confinement in the lunatic asylum, was actually deranged; and that the defendants acted throughout with a regard to his welfare and convalescence.
It was shown, that the plaintiff was married to Margaretta Shoemaker, on the 15th of September, 1839, immediately before which she had executed a deed of trust to her brother, John W. Shoemaker, whereby her estate was settled *155to her own use, reserving to herself a power of revocation; and on the 10th of September, 1842, she executed a deed of revocation, by which the whole of her estate was conveyed to her husband, Morgan Hinchman.
Much evidence was introduced to show that the plaintiff for several years prior to his confinement in the asylum had exhibited symptoms of partial insanity, having on one occasion, it was alleged, been guilty of violent conduct towards his aged mother. After his removal to the country these attacks, it was said, became more frequent and more violent, and so excited the apprehensions of his wife, that it was determined by his family to send him to the asylum for medical treatment.
Accordingly, on the 6th of January, 1847, his mother, in consequence of what his wife had communicated, called on Dr. Griscom, and requested him to come and hear the story from her own lips. The Doctor expressed his readiness to give a certificate of Morgan’s insanity, if it was requested. On that evening, the plaintiff’s wife, his mother, his sister, Anna W. Hinchman, Edward and Samuel S. Richie, and Elizabeth R. Shoemaker, met at his mother’s residence, and upon a consultation between them, it was determined, at the desire and request of his wife, that Morgan Hinchman should be placed in the asylum. The Richies declaring that they would have no hand in it, unless it was the wish and desire of his wife, and unless all the others had made up their minds as to the necessity and propriety of the step. After his arrest, in the manner described by the plaintiff’s witnesses, his mother called on Mr. Price, and directed the necessary legal steps to be taken, which resulted in the application to the court of common pleas of Bucks county for an inquisition of lunacy, as above stated. The inquisition was alleged to have been held, and the jurors selected, in the usual manner, the sheriff testifying that it was not the practice in such cases to examine the witnesses in the presence of the supposed *156lunatic; but that Morgan Hinchman did, in the present instance, request to have counsel to represent his interests, which request was evaded, Mr. Price asking him, if he was not satisfied with him as counsel; and the proceedings went on without allowing his wish for the presence of counsel or friends to be complied with. The plaintiff left the asylum on the 6th of July, 1847, after which he was registered as “ discharged, restored to his usual health.”
After his discharge, he requested Judge Stroud, who was related to both parties, to see his wife and sister-in-law, in reference to his return to his family. The Judge called on Mrs. Hinchman, at her sister’s residence in Germantown, when she said, — they expected him to return; the house was open for him; that he could come and live there, and go in and out at his pleasure. Elizabeth R. Shoemaker, at the same time, remarked, that the house was hers; her sister was living there with her children, and of course he could not have control of her servants, or over her domestic arrangements; but, in other respects, he might remain there as unrestrained and comfortable as need be. On the result of this interview being communicated to the plaintiff, he flatly refused to reside at Germantown, and declared that instead of returning to his wife, she should return to him, with an acknowledgment that they (of she) were all wrong, and he was right.
It was also shown that, by the rules of the asylum, on the presentation of the certificate of a respectable physician, and the production of an order for admission signed by one or more of the proper committee, neither the superintendent nor the resident physician had any power to refuse to admit a patient. Benjamin H. Warder was a member of the committee in January, 1847; he admitted that' he signed the order for the plaintiff’s admission.
It was also testified, that the paper signed by John D. Michener, purporting to be a return to the court of common pleas of Bucks county, as commissioner in the inqui*157sition of lunacy, was obtained from him by threats of a prosecution; it was obtained for the purpose of being laid before the meeting of Friends. Michener did not know, when he signed it, that it was addressed to the judges of Bucks county, but said, the part which referred to his ignorance was true enough.
The defendants having closed their testimony, H. J. Williams moved for the discharge of Benjamin H. Warder, for the purpose of offering him as a witness.
W. B. Reed, Perkins and D. P. Brown opposed the discharge, and cited United States v. Harding, 6 Penn. L. J. 17.
The court refused to instruct the jury to discharge B. H. Warder.
The plaintiff called witnesses to explain the alleged violent conduct on his part towards his mother. It apappeared that Mrs. Hinchman was in the orchard, with his wife,.knocking down apples from the trees, with a stick; that plaintiff several times requested her to desist; and on her persisting with great pertinacity, -took her by the arm, to lead her from the orchard; she resisted in a state of much excitement, commenced screaming violently, and on his attempting to move forward with her, fell on her knees, and abused him in strong language. The next morning, she left his house: before her departure, Morgan came up, and offered her his hand, which she refused to accept; and, as the witness testified, gave him a good tongue-lashing; she said, “ I cannot accept your hand, and unless you repent I never want to see you again.” This occurrence took place in the summer of 1844.
It was also shown, that the paper was not got from John D. Michener under threats of prosecution. That the overseers of the meeting were present when Michener began to make the acknowledgment; and on a suggestion *158that it had better be put in writing, the paper was executed by him, and witnessed by two of the persons present, one of whom testified, that the certificate was not forced from Michener for meeting purposes, but was given by him willingly, Morgan Hinchman declaring that it was intended to be filed in the office. At the same time, Hinchman gave Michener an acknowledgment in writing, that it was received in mitigation of the damages caused him by MicheneNs acts in the premises, and intended to end all differences between them. '
The plaintiff also called additional witnesses to prove his sanity before and at the time of his incarceration in the asylum.
The defendants likewise produced additional witnesses as to the lunacy of the plaintiff; and to sustain the character of Mrs. Eliza W. Hinchman for veracity, and forhe r kind and affectionate disposition towards her children.
After a trial which had extended itself to an unprecedented length, (having been commenced on the 9th of March, 1849,) the jury were eloquently addressed by S. M. Perkins, Esq., for the plaintiff; by George Griscom, C. Gibbons and H. J. Williams, Esqs., for the defendants; and by David Paul Brown, Esq., in reply; when the following charge to the jury was delivered, on the 9th of April, 1849, by
Burnside, J.— Gentlemen of the jury: — I have reduced the charge I am about to deliver to you substantially to writing, and those points in which precedent is involved, I have written word for word. I do so because this is an exceedingly important cause, such a one as has never been tried in this state, and such a one as, I trust, will never arise again. But, if such a cause should ever arise again, I trust that whatever the supreme court shall decide *159upon will be a rule for all men. I shall now proceed to offer you that charge.
I need not say, gentlemen, that I am deeply impressed with the novelty as well as the importance of this case. A correct determination of it requires our cool, calm, and deliberate attention, and our most deliberate reflection. Let us meet it in a way worthy of ourselves, without any improper feelings or prejudice, and with a strict regard to the law and the evidence: let us judge of it as we expect to be judged by Him who knows our inmost thoughts.
Conspiracy consists in an unlawful agreement, though nothing be done in pursuance of it: the conspiracy is the gist of the offence. Then, it is indictable, but it would not afford a civil remedy. So, a conspiracy to do a lawful act, if for an unlawful end, is indictable. Where men contrive and conspire to do an unlawful act, which oppresses another or unjustly subjects him to the power of those confederating, it gives effect to their purpose, either of extortion or mischief: such a conspiracy affords a civil remedy for damages, by an action on the ca se. I general, there must be a common design to do an unlawful act; when the fact of combination is established to the satisfaction of the jury, and the combination of the individuals in the unlawful enterprise is shown, or rather the connexion of the individuals in the unlawful enterprise, every act and declaration of each member of the confederacy, in pursuance of the original concocted plan, and with reference to the common object, is, in the contemplation of the law, the act and declaration of them all, and is original evidence against them all. It makes no difference at what time any one came into the conspiracy. Every one who does enter into such a common purpose or design is, in law, a party to every act which had been previously done by any of the-others in pursuance of such common design.* This then, gentlemen, is a great, a settled principle of the law in rela*160tion to this offence; and it is one which requires a court and jury to be careful that they do not involve innocent men, and also to take care that the guilty do not escape. I shall not enlarge upon it. It is, I admit, a charge easily made, and difficult to defend against. I am not for extending the law of conspiracy beyond its just limits — its settled principles; nor am I opposed to applying it to those to whom it ought to be applied.
You have heard, gentlemen, how Morgan Hinchman was arrested on the 7th of January, 1847, and taken to the Frankford asylum. Was he then insane? This is a fact for you to determine; and, in fact, it is the great, the leading fact in the cause. The learned counsel for the plaintiff contend that, as this proceeding was not upon oath or affirmation, it was contrary to the bill of rights, and a violation of the constitution of Pennsylvania. If you find, gentlemen, that Morgan Hinchman was insane at that time, I do not accede to that proposition; it would have been true if he had been charged with a crime; but the right to restrain an insane person of his liberty is found, as expressed by Chief Justice Shaw, of Massachusetts, “in the great law of humanity.”
The Pennsylvania hospital was in existence half a century before the adoption of the constitution of 1790, and it was in existence and operation, as well as this asylum, when the amended constitution of 1838 was adopted. So that those gentlemen (and they were men of talent and distinguished ability, in both conventions, and especially the convention of 1790,) who formed this constitution, had the practice of the Pennsylvania hospital before them; and the late convention had before them, in addition to that, the practice of this asylum. I then negative the proposition, that it is a violation of the constitution of Pennsylvania, so to arrest and confine an insane man.
Gentlemen, these institutions are the pride of our state; they are the highest honours that the city and county of *161Philadelphia possess. And there is no part of our population that have done more, that have expended more time and more money, to benefit the condition of the insane, and to erect and sustain these institutions, than the society of Friends. Perhaps they have done more than any religious denomination in relieving the condition of this unfortunate, but too long neglected class of society. I am not, gentlemen of the jury, for throwing any impediment in the way of these institutions; but, at the same time, as I shall show you, they are subject to visitations by the law of the land, like every thing else; and if they are abused, they are amenable to the common law.
Gentlemen, I am proud to say, that this is the first instance of alleged oppression in any of these humane or meritorious institutions. If wrong has been done, they are open to the examination of the civil courts, and the question will be, in each particular case, whether the safety of the person himself, or that of his family or friends or neighbours, required that he should be restrained for a time, and whether restraint is necessary for his restoration or will be conducive thereto. This is the great question. In considering this question of restraint, we must not fall into the vulgar error, that a person is not to be considered insane, when he does not always show wildness in his conduct, in his every day transactions. It is now ascertained and well established, by the investigations of learned men, and the light of science, that a person may show shrewdness in his business, and intelligence and cunning in his arguments, and still be decidedly insane on some one or more subjects; and if confinement or restraint, with regular medical treatment, are necessary for the restoration of such a person to a perfectly sound mind, they are the best friends of the party who enforce it. Illusions, which are deceptive appearances, and false views and hallucinations which are the acts, enlightening the mind, sometimes exist in persons who appear sound' to the generality of their *162neighbours. This species of insanity will show itself in outbreaks of passion, occasionally in sullenness, and in various ways, to the parents, wife and children of a man, when those who frequently visit him will not discover it. I entertain for our insane hospitals the highest gratitude; they often confer on the miserable and unfortunate maniac the restoration of mind and health; and those who erected them with their money, and who devote their time and attention to these institutions of benevolence and charity, at no profit to themselves, are deserving of the highest praise. Our legislature are now erecting, at Harrisburg, an asylum for the insane poor, the first appropriation for which was, I think, one hundred thousand dollars, at the expense of the tax-payers of the state.
I return to the question, whether or not Morgan Hinchman was partially insane. That question is for you to determine from the evidence, and, in calling your attention to this, I call it to the whole evidence. For me to read the whole evidence to you, would take a day or two, and it has been so recently discussed, so recently and so elaborately considered by the counsel on both sides, that I deem it unnecessary. • Your minds have been kept to this cause as closely as I could occupy them, from the commencement to the present time. But, gentlemen, I ask you this question, —Did not Morgan Hinchman’s mother and his wife think that he was insane? Was it not at their instance that he was removed to the asylum ? It is urged by the learned counsel who last addressed you, that the wife had no hand in it, and was imposed on. lam unable to discover in the evidence any foundation for this position. Is there not evidence that Samuel Rifihie said he would have nothing to do with it, unless it was the desire of Mrs. Morgan Hinchman ? Does not the whole evidence show that she was at Mrs. Eliza W. Hinchman’s when the whole matter was concocted? — when the determination was come to, to take Morgan Hinchman to the asylum ? You have heard *163who were there. There is one thing that struck me as remarkable. This old lady seems to be no common woman. It appears she was left a widow when she was a young woman, with five or six very young children. On the death of her husband, her means were not very extensive, and yet some of. her children appear in court, and they have an education and intelligence which would do credit to the most wealthy of the commonwealth. You have the testimony of the mother, and you are the judges of it. She solemnly affirms that she made the application; she came to her son’s friends to have him removed to the asylum, because she loved him, as she no doubt did, and because she thought it would improve his health. The affair in the orchard was an unfortunate occurrence, and I submit to you, as rational, intelligent men, whether it was possible that revenge could rankle in the mother’s bosom, from an occurrence of that kind, for so long a time. You, and not I, are to judge of it. Although the mother did not visit the son, yet the son, occasionally, as you have heard, called on her on business. And is it possible that such a diabolical spirit of revenge could exist in a mother’s heart such a length of time ? That she gave her sanction to his removal to the asylum, that it was at her desire that he was removed thither, that she was the great cause of that removal, is to me manifest; but I submit that to you.
With regard to the wife, the evidence, as far as I can judge, is that she was a mild, a kind, an affectionate wife; she was the wife of his bosom, she was the mother of his children, his partner for life, for better and for worse. If he was subject to spells of unhappiness and disorder, she knew it better than all others. I submit to you, that she knew the very throbbings and pulsations of his heart, and that if he was disturbed and disordered, if he was agitated with disease, she knew it best. Why did she consent to his being sent to the asylum ? What loving, kind and affectionate wife ever desired to destroy her own happiness *164by disgracing or distressing her husband ? Gentlemen, I make these observations to you in order to bring them to your minds, because this case presents some features that are very extraordinary indeed. What then was the object of placing Morgan Hinchman in the asylum? Was his mind diseased, as Dr. Evans informs you, and was it to restore him to health, wife and family, and friends and happiness, that he was confined in the asylum, or was it for some mercenary purpose, as is alleged ? If it was for his benefit, as his friends honestly believed, and they had reasonable cause for that belief, that he was partially insane, and you are satisfied of that insanity, this action will not lie, and cannot be maintained. On the other hand, if he was placed there for a mercenary purpose; if he was placed there, as alleged, in order to obtain a deed of trust of his property for his wife and children, the plaintiff will be entitled to your verdict. The first evidence which tends to support the mercenary view of the case is that of Jonathan Smith; he says he thinks he heard Morgan Hinchman and Mr. Garrett talking about a deed of trust, and settling affairs. “ It was Mr. Garrett,” said Mr. Smith, “I heard say it; then, he said, he would be well enough in a short time, and get out:” on the cross examination on that point, he added, “ as I passed through, Garrett said, that if he would sign the deed he would soon be well, and all would then be right, and then he'd get out. You have heard Mr. Benjamin Hinchman: he says, that in a conversation with Edward Richie, about an interview with Margaret Hinchman, Edward Richie said, that “ if Morgan Hinchman woidd allow his property to remain in trust for the benefit of his family, he might come out of the asylum as soon as he pleased;" and that he (Richie) wished, “ that Morgan would, put his property in trust, and then there would be no objections to his coming out." You have also heard what the wife said, or what Mr. Benjamin Hinchman stated, that she said to him. He states, that she said, “ that if he (Morgan) *165assigned it (his property) over, he might come out, but if not, he might get out as he could.” You have also heard the conversation which Abraham Sink heard bétween Dr. Worthington and Hinchman: he (Sink) says, tlIhave heard Dr. Worthington speak of his property; Dr. Worthington advised him (Hinchman) to give up his property; that he woidd not live with such a woman like her again, but would go to Texas; property ivithout liberty ivould be of no use to him.” If, then, Morgan Hinchman was placed in this asylum for the mercenary purpose of getting him to convey his property in any way, it was a foul conspiracy: if it was honestly and conscientiously done, for the purpose of restoring him to health, they conscientiously believing him to be diseased, and you should be of that opinion, it presents a case in which, as I have told you, the patients may be taken in charge by relations and friends, by wives and by mothers. And if I have a wish on the face of the earth, if it should please God to visit me with such a misfortune, I would hope that my wife and children would cause me to be removed to one of these institutions, which are an honour and a blessing to your city and county.
It appears that the plaintiff and his wife, when they were married, were about equal in wealth. He very generously executed a deed of trust for the benefit, of his wife, but unfortunately there was a power of revocation. And I tell you, gentlemen, and all who hear me, that if any one wants to settle any property on his wife and children, he will not put it in the power of husband or wife to alter or change it, because my own observation is this: — I never knew one instance in the whole course of my life, where the husband could not by some means or other obtain the consent of his wife to make a change; he will do it by love or affection, or if that will not do, he will too often do it by bad treatment'. They (Hinchman and wife) did change it, and that property possibly depreciated in value, as you have heard; his money wasted some, no doubt. Whether the wife, and *166the friends of the wife, wished to obtain for her permanent possession of the property, by placing him in an asylum, in order to secure to her a competency, is for you to determine. And if they did pursue that course, and if you are satisfied that he was a sane man,' or rather, that he was not an insane man, it was a mercenary purpose, and one which will support the narr.
Now, gentlemen, as you will see, I have reduced this cause to a simple inquiry; I have endeavoured to bring it before you in the simplest possible form, in order to lessen your duties; and I consider it the duty of a judge to bring questions before a jury, in such a manner that they will fairly understand and fully comprehend them, and then they are the persons to decide. And while I shall never permit a jury to encroach upon the right of the court, in matters of law, I, on the other hand, shall be the last man to meddle with a jury on matters of fact.
I shall now, as briefly as possible, answer the defendants’ points, and they are really multiplied to an extraordinary extent. I suppose the notion is, that a man vs'ho comes from the Allegheny mountains knows nothing about the laws of Pennsylvania.
1. That unless the jury are satisfied that the defendants procured the commission of lunacy to be sued out by the mother, the plaintiff cannot recover on the first and second counts in the narr. Ans. — I agree to this, with the exception that the jury will recollect that the decision to place him in the asylum was come to on the 6th; that he was carried there on the 7th; that application was made to Mr. Price on the 8th; and that the petition was signed on the 9th, and immediately forwarded to Doylestown. The jury will judge whether the proof is such as to satisfy them, that it was a part of the original concoction, to take out the commission of lunacy, and to take it out for an improper purpose.
2. That the suing out of a commission of lunacy cannot *167be ground for this action, unless it was done, or procured to be done, by the defendants, and was done by them maliciously and without probable cause for believing the plaintiff to be deranged, and that it is the duty of the plaintiff to establish, both malice on the part of the defendants, and the want of probable cause. Ans. — I accede that the suing out of the commission was a legal proceeding, and that the plaintiff must for that show malice, and the want of probable cause.
3. The defendants cannot be found guilty, under the second count, unless it is proved that they did conspire to take the plaintiff) and confine him in the asylum, for the purpose of enabling some of the defendants to get possession of his property — that being the conspiracy charged in that count. Ans. — The conspiracy must be substantially proved as averred in the count, that two or more of them did conspire for the purpose of enabling some of the defendants to get possession of his property, as charged.
4. That the defendants cannot be found guilty under the third or fourth counts, unless it is proved that the defend-, ants conspired to confine the plaintiff, to get possession of his property, and to compel him to settle the same on his wife and children. Ans. — I have already substantially instructed the jury as desired, upon this point — that the plaintiff must substantially prove the case he sets out in the declaration.
5. If the defendants believed that the plaintiff was deranged, and required for his recovery medical treatment, under restraint, the verdict must be for the defendants. Ans. — The general charge instructs the jury on this point; I accede to it.
6. That the taking of the plaintiff to the asylum, and his detention there, even if unlawful, and a trespass, are not acts for which the plaintiff is entitled to recover in this form of action. Ans. — Certainly‘not; unless there was a conspiracy for that purpose.
*1687. That if the defendants acted under circumstances, such as would have induced a man of ordinary intelligence to believe the plaintiff insane, and requiring medical treatment in an asylum, the plaintiff cannot recover. Ans. — I accede to this, if the jury find it was their only motive to restore him in health and soundness to his family.
8. That the application of the wife and mother, accompanied by their statement that the plaintiff was deranged, constitute probable cause, if circumstances warrant a reasonable belief of insanity or unsoundness of mind. Ans.— There are no relations so near or dear to the affections of a man as his wife and mother, and every presumption is in favour of their affection and regard, until the contrary is shown. I cannot say, under the immense mass of contradictory evidence in this cause, that the application of the wife and mother, accompanied by their statement that the plaintiff was deranged, constitutes probable cause. I leave it to the jury to determine whether the circumstances proved warrant a reasonable belief of insanity or unsoundness of mind. I can only say that if he was insane, it was probable cause.
9. That, if even there were auy evidence of any of the plaintiff’s property having been disposed of by any of the defendants, and the proceeds not accounted for, it would not be evidence to support this action. Ans. — It is not evidence to prove a conspiracy, and support the action; but, if a conspiracy is proved, the fact done in furtherance of it would be evidence to increase the damages.
10. Knowledge of the existence of a conspiracy must be brought home to every defendant, otherwise, his acts do not make him a party to the conspiracy. Ans. — They do not, unless the act is done in pursuance of the originally concocted plan, and with a reference to the common object. If it is done in furtherance of the common purpose, he is, in law, a party without regard to the time he entered, which is for the jury.
*16911. Receiving a patient, with the usual certificate and order of the asylum, unless known that he was brought there by a malicious and unlawful conspiracy, does not make the superintendent and resident physician conspirators. Ans. — Certainly not, as to the abstract fact, it does not make the superintendent and resident physician conspirators, unless they reported corruptly to the managers to keep the patient there, in furtherance of the conspiracy.
12. Signing an order of admission of a patient, on the application of his mother, accompanied with the certificate of a regular physician, in the usual form, and in the usual bond, is no evidence of being a party to the conspiracy laid in the narr. Ans. — To this I accede fully as to the abstract proposition.
13. Signing a certificate by a medical man, that he believes the party to be insane, is no evidence of being a co-conspirator, unless previous knowledge of the existence of a malicious conspiracy is brought home to him. Ans. —I fully accede to this.
14. None of these defendants can be made answerable for any act done while serving on the inquest, as one of its members, nor for his decision or verdict as such. Ans.— I feel it my duty to make this further answer to the 11th, 12th, 13th, and 14th points. I instruct the jury, that the officers of the institution ought not to be subject to an action for damages, or held responsible in this action, unless they had knowledge that the plaintiff was sent there for an improper purpose; or, after he was there, they corruptly joined in keeping him there, for an improper purpose; nor the physician, unless he gave a corrupt certificate; nor the jury of inquest, unless they had themselves fraudulently placed on the jury for a corrupt purpose. You understand me, gentlemen. You have heard the rules of this institution read, to a certain extent. It is conducted by twenty managers. They say, when a patient shall be received, and when discharged. When a physician, having no im*170proper connexion with the matter, honestly gives his certificate that a man is insane, and conscientiously believes that he is insane, he (the physician) is not liable in an action. If a man is a superintendent there, as was Mr. Garrett, who it seems was very kind to every body, (the only fault that I can see in him, is his conduct in relation to the letter) he has no power to refuse receiving a man, nor has he any power to discharge him; and unless there is evidence that he joined corruptly in keeping a man improperly there, I would not find him guilty; because then no man would accept such a place, and it is all-important that such institutions should be kept up, and that their officers should be respectable and intelligent men. So with Mr. Warder: what did he do? He was one of the fellow members who signed the order for the admission of Morgan Hinchman, and which on its face is all very regular. Unless he did that corruptly, he ought not to be answerable.. His duty was performed when he gave the order for the admittance of Hinchman to the asylum: and unless he joined as a manager in corruptly keeping him there, (and the'evidence on that point ought to be perfectly satisfactory, before you find him guilty,) Mr. Warder ought to be discharged. I will take up the case of all the defendants in regular order hereafter. But to return to the defendants’ points. We now come to the. 15th and 16th points.
15. The finding of the inquest, that the plaintiff was insane, is a justification of the arrest and confinement, so long as it is necessary for the health and improvement of a party.
16. The finding of an inquest, that a party was insane, is a justification of the arrest and confinement, so long as it is necessary for the health and improvement of a party. Ans. — These two points run into each other, and they will be answered together. The inquest, as well as the whole proceeding, has been attacked on the ground of fraud. *171Fraud may poison a record, which may include the solemn finding of a jury, as well as a deed or any species of contract. The allegation is here, that the whole proceeding was done under circumstances of contrivance; the selection of jurors is said to have been fraudulent. If so, the whole proceeding was fraudulent, and they were an illegal body, sitting on a sound and sane man, in an insane asylum, for a corrupt or illegal purpose. If, on the evidence, the jury should be. of that opinion, then I instruct you that the fraudulent finding of the jury was no 'justification, before it was set aside, of a fraudulent arrest. If you find to the contrary, that there was no fraud, then the finding was' prima facie evidence, before it was set aside, and the position of the defendants’ counsel is correct.
17. The court of common pleas of Bucks county, and the court only, had authority to direct to whom, and what notice should be given of the inquest; and if no such notice was given, the omission cannot be imputed as a fault to any of the defendants. Ans. — I accede to this; the act of the 15th of June, 1836, § 6, Purd. 782, provides that “it shall be the duty of the court, at the time of granting any application, to make such order respecting notice of the execution of the commission, to the .party with respect to whom such commission shall be issued, or to some of his near relations or friends, who are not concerned in the application, as the said court shall deem advisable.” It is true, the court made no order ; no notice was given either to the party himself, or to his paternal relations. The first thing he knew, he was brought down and examined before the inquest. But it was not the fault of the defendants, but of the court in not making the order.
18. The finding of the inquest, fairly summoned and having fairly decided, is proof of probable cause. Ans.— This is answered in the affirmative; if the jury believe that the defendants were actuated by no improper motives, in arresting and confining this man, and it was not done to prevent a fair trial, I accede to this point.
*17219. If the jury believe that the defendants acted at the solicitation of the plaintiff’s wife and mother, and upon their representations that he was insane, without malice or interested motive, the plaintiff cannot recover in this action. Ans. — This point is fully answered in the general charge.
Mr. Griscom thinks his brother (Dr. Griscom) stands on different ground from the other defendants, and has put ten additional points to the court. The jury will take the answers already given according as they apply to Dr. Griscom’s case, but I will examine them and give such further answers as I deem necessary.
20. That if the jury are satisfied from the evidence, that Dr. Griscom had no acquaintance, connexion, or consultation, with the other defendants, or any of them, nor with any other person or persons, with reference to the taking or placing of the plaintiff in the asylum, previously to that design having been matured and acted upon' by others — and then only gave professional opinion, at the request of the mother and wife, without any connexion, concurrence, or co-operation with any of the other defendants — then he is not liable. Ans. — If the jury find that such are the facts, I accede to it.
21. There is nothing alleged against Dr. Griscom, (according to Mr. Perkins’ summing up,) in the argument for plaintiff, except that he advised the plaintiff'to acquiesce in the design of those who did take him; and all the proof shows that any advice which he gave, was imparted to plaintiff by Dr. Griscom, solely and purely with a view to the good — the medical aid and benefit of the plaintiff — the medical opinion and advice thus imparted being entirely independent of the idea of plaintiff going to the asylum, as a part of the treatment, unless at his (plaintiff’s) own free will and choice. Ans. — If the jury find the facts as stated, I agree to this.
22. That the jury may presume, from all the testimony taken together, and particularly that of Eliza W. Hinch*173man, as well that Dr. Griscom went to the tavern to oppose, as to forward any design to take the plaintiff to the asylum, unless by his (plaintiff’s) free will and choice. Mr.Hinchman’s testimony showing that he declined advising such a course, (when he referred her to friends of her own meeting;) and that, so far as any action or advice of his went, it is not shown that he did, while there, approve of any resort to compulsion, and that, if not, he is not liable. Ans. — It is for the jury to say how Dr. Griscom went there, and what part he took.
23. That, as there is no proof that Dr. Griscom ever had any knowledge or connexion, or in any way was ever consulted or conferred with by the other defendants, or any of them, or any person whatever, with regard to the property, or any disposition of it, or any of the business or domestic affairs of the plaintiff, or any subject relating to these subjects, at any time; but that the proof is positively and clearly the contrary, by Eliza W. Hinchman’s testimony, and all the evidence in the cause; he cannot be held liable on these charges. Ans. — The jury are the judges of the motives, and the part Dr. Griscom took, and will apply the law to the case as already explained.
24. That malice express or implied is essential, and that it cannot be presumed against Dr. Griscom, from all the testimony, but altogether the contrary. Ans. — This is a question for the jury.
25. That the professional advice, or opinion of a physician, given to any one to whom he is called to give it, honestly and truly, with intention to benefit the health of the person advised, without any other action on the physician’s part, (excluding the idea of mal-practice, of course,) cannot, in any case, subject the physician to an action for damages. Ans. — Undoubtedly, where a physician gives a certificate, honestly and bona fide, he ought not to be subjected to damages.
26. That any opinion expressed by Dr. Griscom, as to *174the cure of Morgan Hinchman, can no more subject him to punishment or damages as a conspirator, than can the opinion entertained, expressed, and acted on by Dr. Evans, subject him thereto. Ans. — The first part is a matter of fact for the jury to determine; and if they find that he was a sane man, and there was a conspiracy, and his acts were in furtherance of that conspiracy, he is a conspirator.
27. Dr. Griscom cannot be made liable, unless the jury are satisfied, from the evidence, that he entered, at some time, into the conspiracy, with the common design or purpose, with others, to effect what is laid in the declaration, to wit, to seize and incarcerate the plaintiff, to get possession of his property; compel him to make disposition of his property; to corrupt and pervert the mother’s and wife’s minds, to turn them against the plaintiff; to influence the mother to sign and affirm to the petition to institute proceedings in lunacy, &e. (See 1 Greénl Ev. § 111.) Ans.— If the jury find the facts as there stated, undoubtedly, he ought not to be liable: I agree to this.
28. That conspiracy is the gist of the action. Ans.-— I concur in this.
29. That malice, want of probable cause, and damage to the plaintiff, must all concur, and be proved, to enable plaintiff to recover. Ans. — I do not exactly go that far: this is true, if the jury believe he was honestly placed in the asylum for the re-establishment of his health and mind.
Now, gentlemen of the jury, I will take up each defendant’s case, commencing with that of Dr. Griscom. From all that appears in this case he is a man of excellence and worth. It appears that he was the physician of Morgan Hinchman, his family, and of his mother, and that he was a friend of Morgan Hinchman. The mother went to him, and asked him to go to the Red Lion hotel. There is no evidence to show that she communicated any thing to him except that her son was insane, and that he was about to be taken to the asylum. Now, was he honest in that im*175pression? If he was honest in it, and if he really did nothing but clap him on the back and say — “ Come, my good fellow, you are insane, go to the asylum, and go peaceably and quietly,” — if that is all Dr. Griscom did, I would be inclined to say that he ought not to be found guilty, and I presume the jury will not convict him under these circumstances. But if the jury believe that by his presence, his aid, and appearance, Morgan Hinchman was induced to yield to the plans of those who had assembled there for the purpose of carrying him to the asylum, and if they believe that Morgan Hinchman was of a perfectly sound mind, and that he was taken fr,om that tavern for the purpose of extorting from him a conveyance of his property for the benefit of his family; if Morgan, in consequence of the presence and acts of Dr. Griscom, was prevented from clearing out and running away, then you must consider Dr. Griscom a party to the transaction, and I submit it to you upon these principles. I have no doubt that Dr. Griscom is a most excellent man; these defendants are all gentlemen, and clever men. I have no doubt some of them acted hastily, and I will put the case as fairly for them as they can possibly ask, or any citizen require; that if the action was Iona fide, and they had reasonable cause to believe that Morgan Hinchman was an insane man, and required restraint and confinement, they ought to be discharged. And this is the first time that the question has been decided in Pennsylvania to this extent. But if the restraint and confinement of the plaintiff were effected for a mercenary object, which you are to determine from the evidence, of which you, and not I, are to judge, it is a different case, and an action for damages will lie.
The jury will bear in mind, that it is their duty to find in favour of those defendants against whom there is no proper evidence, and who do not come within the principles on which they have been instructed, as conspirators. As to Anna W. Hinchman, my mind has been, and is strongly *176inclined in her favour, and I will submit her case to you. She was present at her mother’s, when it was decided to take her brother, Morgan Hinchman, to the asylum. There is no evidence, that I can discover, that this daughter said any thing; there is no evidence that she opened her lips on that occasion; and it could scarcely be expected, that she would .resist her aged mother. And, unless there is evidence that she encouraged her mother, it seems to me, that I would not convict the child of any woman, under such circumstances, of a conspiracy. You understand me, gentlemen; there is no evidence that she encouraged her mother, if there was, it would present a different case: she was present; and is it really to be expected, that an amiable daughter would resist a venerable mother, in a thing of that kind? You, gentlemen, will judge of her, on the principles I have stated.
Mr. Garrett is the superintendent of the asylum; as I have already remarked on this case, this gentleman had no discretion at all, under the rules of the institution. If he did say what you heard, about Morgan Hinchman conveying his property, he had no power to discharge him; and is not that a circumstance in his favour? Unless the jury are satisfied, from the evidence, that he afterwards joined and combined to keep Morgan Hinchman illegally in confinement, they should find in his favour. The same principle applies to the case of Dr. Worthington; unless he joined in the conspiracy, after Morgan’s confinement, he also ought to be discharged. He had no power to- discharge any patient, he could only report to Dr. Evans; and unless there is some evidence that he acted corruptly in reporting to Dr. Evans, the visiting physician, the jury should find in his favour. It seems to me, and I have said, that my feelings are in favour of the asylum, unless there was evidence of a concocted plan.
Benjamin H. Warder is in precisely the same situation as Dr. Worthington, and Philip Garrett, the superintendent. *177According to the rules of the institution, it seems, that it was his duty to give an order for the admission of any patient, on the certificate of a respectable physician. Unless he did some corrupt act to further the confinement of a sane man, you ought to give a verdict in his favour.
As for Dr. Kite, if he were not in the original conspiracy, and gave a conscientious certificate, I would not hold him responsible; nor do I see the legal principle upon which he can be convicted. His conviction would deter physicians from giving their certificates, and have an unhappy effect upon society. But, really, did he give a corrupt certificate ? If the jury believe that Dr. Kite did give a corrupt certificate, it would materially alter the case, and there is one thing that makes against him; he stated, according to the evidence, that he had not seen the patient in four months; this, I think, is the strongest feature in his case. The rules of the institution do not require that the certificate should state, when the examination, upon which it was based, was made. The British statute requires that the certificate should state, when the examination was made, which must not have been made more than seven days previous to the date of the certificate; and then, two physicians must be present at the examination. If the managers of this institution would take my advice, they would adopt the provisions of the British statute, and require that all examinations should be personal, and it should be stated on the certificate when they were made. However, gentlemen, it is for you to judge of Dr. Kite: for the mere giving of the certificate, I would not find him guilty, unless you believed he certified falsely; if he acted conscientiously, I think he ought to be discharged.
I put Mr. Biddle on the same principle; if he acted honestly as a juror, he is not liable, and ought not to be held liable; but if he had himself placed on that jury for the purpose of having Morgan Hinchman convicted of insanity, then he comes in with the others. If you believe, *178as the sheriff swears, that the jury was fairly selected, and Mr. Biddle was fairly placed on it, then you ought to discharge him; and I leave him with the rest to you.
With regard to Thomas Wistar, Jr., his first appearance in this drama was after the confinement of Morgan Hinchman, and after the sale of his property. For, although one witness thought he saw him at the sale, I think, it is clearly proved he was not there; however, that is for you to decide. There certainly is no evidence that he had any thing to do with the original concoction. The mother wanted to see him, but did not; there is not a particle of evidence that he had any thing to do with placing Morgan Hinchman in the asylum: all his acts were subsequent to that transaction; he did nothing but acts of kindness to Mrs. Hinchman, who, say what you please, is an unfortunate woman, and I certainly would not convict him of conspiracy for doing acts of kindness, after the conspiracy had' been concocted, (if a conspiracy was formed, at which he was not present) unless those acts of kindness tended to further the conspiracy, and were designed for that purpose. I then say, that if the jury are satisfied that Thomas Wistar did nothing to further the common design, he ought to be discharged.
And I submit it to you, gentlemen, that, if there was a conspiracy, Samuel and Edward Richie, as well as Elizabeth R.Shoemaker,were at its concoction: Mr.Lippincott, Mr. Elkinton, and Mr. Whitall were not there, but helped to arrest the man. For these six defendants I have nothing to add; if you believe, that on the 7th of January, 1847, Morgan Hinchman was a sane man, and they, or any of them, maliciously caused him to be arrested and imprisoned in the Frankford asylum, they are all by law subject to the consequences. I think it is due to Mr. Lippincott, to Mr. Whitall, and to Mr. Elkinton, to say, that I am fully satisfied in my own mind, that they had no intention to violate the law of the land. But, if the Richies, with the mother, *179had this man arrested, when you are satisfied that he was perfectly sane, their joining in the act of arresting him and taking him to the asylum, makes them, in law,'principals, and it is not in my power to exonerate them. I cannot change the law; I am bound, as I am answerable to my God, and to my country, to declare the law as I believe it to be: I have done so, and however hard I may think it, I cannot help it; they are principals, if it was a corrupt design to take a sane man to an insane asylum.
To conclude, I have told you that, if Morgan Hinchman was a partially insane man, who required medical treatment, and if he was placed in the asylum for that purpose, and for that only, the plaintiff ought not to recover. But I think it my duty to say to you, and from that duty, with the blessing of God, I will never shrink, that it seems strange to me, that a man who is sober and industrious, a good farmer, capable of attending closely to all his duties, kind to his wife and children, but who, no doubt, like other men, had some oddities, was insane. In these cases, say the supreme court, in M‘Elroy’s Case, (6 W. & S. 451) “ the question is, was he deranged to such an extent as to disqualify the traverser” (in an appeal from the inquisition of lunacy)' “ from conducting himself with personal safety to himself and others, and from managing his own affairs, and discharging his relative duties.” Depart from this rule, and where shall we be ? Now, I have reduced the cause to this simple inquiry; if you are satisfied that Morgan Hinchman was so partially insane that it was dangerous to himself, dangerous to his wife, and dangerous to his children for him to be at liberty, and that these defendants acted from pure motives, and placed him in the asylum for the purpose of restoring him to health — restoring him sound to his family, I hold them justified. On the other hand, if they placed him there for a mercenary purpose, they, the six to whom I have referred, and against whom there is some evidence, of which you will judge, ought to be mulcted in damages.
*180I say, gentlemen, that I have brought this cause to a simple issue. It is an important cause, and it is one which you are to determine; I want you to do it coolly, and calmly, and deliberately, apart from excitement of any kind: judge from the evidence, judge as you expect to be judged hereafter: I know the ground I have taken, and that I have endeavoured to do my duty conscientiously. If the man was a sane man, and you so find, and they knew that he was sane, and concocted the scheme for the purpose of obtaining a deed of trust, it is an aggravated case. Yet, do not suffer yourselves to be carried away, still act with deliberation and coolness; do not suffer yourselves to do injury by giving excessive damages, which would tend to impoverish and ruin the families of the defendants.
Gentlemen, I have nothing more to say; I am satisfied in my own conscience, that I have done my duty in this cause, and I leave the result of it to you.
The jury found a verdict in favour of the plaintiff, against Samuel S. Richie, Edward Richie, John Lippincott, George M. Elkinton, John M. Whitall, John L. Kite, and Elizabeth R. Shoemaker, and assessed the damages at $10,000; and in favour of the other defendants..
The counsel for the defendants, against whom a verdict had been found, moved for a new trial; and also in arrest of judgment, alleging that the third and fourth counts were improperly joined with the others, and also that the offence laid in the narr. is trespass and false imprisonment and not the subject of an action on the case. On the 21st of April, 1850, the court refused the rule for a new trial, overruled the motion in arrest of judgment, and entered judgment on the verdict.*
1 Greenl. Ev. §§ 111, 233.
If a person be so insane that it would be dangerous to suffer him to be at liberty, any person may, from the necessity of the case, without warrant, confine him for a reasonable time, until proper proceedings can be had for the appointment of a guardian; and if, before measures can be taken for the appointment of a guardian, he become sane, and be released, the party con*181fining him will not be a trespasser. No one, however, has a right to confine an insane person for an indefinite period, until he shall be restored to reason, but upon compliance with the formalities of the law. Colby v. Jackson, 12 N. H. 526. A person proceeded against as a lunatic, except in cases of confirmed and dangerous madness, is entitled to reasonable, notice of the time and place of executing the commission, and a reasonable time to produce his witnesses before a jury. The jury, upon the execution of a commission of lunacy, have a right to inspect and examine the lunatic; and they should do so, in every case of doubt, when practicable, and should direct the person in whose custody the lunatic is, to produce him, or to permit him to attend before them. Russell’s Case, 1 Barb. Ch. 38.
The opinion of the court of common pleas of Bucks county, setting aside the proceedings of the inquisition of lunacy, in the case of Morgan I-Iinchman, was delivered on the 7th of February, 1848, and is here subjoined, in order to complete this important cause.
In the matter of the Inquisition finding Morgan Hinchman a Lunatic.
Krause, President. — These proceedings show defects that cannot be overlooked, and which would be fatal under the act of 13th June, 1836, if even there had not been too great haste in executing the commission and placing Mr. Hinchman under disability as a lunatic. The 6th section requires the court to direct notice, either to the party in respect of whom the commission shall issue, or to some near relations or friends, who are not concerned in the application, and the object being to procure a defence when that may reasonably be made, it is obvious that such as counsel a finding against defendant, or desire it, are excluded from that list of persons, as ineligible to stand in his stead. For some purpose or other this direction was not asked of the court: and notice was not given by the commissioner. Nor could he have given any that would be held timely from the 1st to the 5th February, the space he allowed to intervene between the presentation of the petition and the meeting of the inquest. The idea seems to have been entertained that to have blood relations present, though known to be against the party, was enough to satisfy the letter of the law; and consequently, his friends who might have stood in his defence — who might have brought forward the numerous witnesses in Bucks county and Philadelphia, who now testify he was a sane man, and thus have carried out its spirit — had no information of his confinement, or the causes for restraining him of his liberty, or the time and place fixed for the trial. Nor was he himself summoned beforehand, or brought in at the time to be present at the examination of the witnesses, on whose testimony he was pronounced incapable of exercising the rights and duties of husband, father and citizen. He was in fact not present for any purpose of defence, but for exhibition merely — a conclusion that is forced on the mind by the whole course of conduct; for the witnesses had been heard when he was called into the room; his desire to have friends and counsel to aid him, was disregarded, and the business affecting all his high interests was concluded after he had been removed. In Ex Parte Cranmer, 12 Ves. Jr. 455, Chancellor Erskine says, “ the party must certainly be present at the execution of the commissioners; it is his privilegeand such must be the construction of our statute, except where, from the necessity of the case, it *182is impracticable to give literal force and operation to the principle, as in the state of facts instanced in the third division of the second section, by which a commission may be executed against an inhabitant of the state, who is absent from it, in the county containing his real estate. But that is justified on the ground of its being a purely beneficial measure, to save the property from impending mischief; and, to prevent oppression, the court exacts ample proof that such is the object, and directs extraordinary efforts to be made, by publication or otherwise, to reach the party with notice. In all other cases provided for by the act — as well that under consideration as that where the alleged lunatic is in the commonwealth, but has no fixed residence — he is followed, and the commission is executed where he is found, that this privilege of being present may be secured to him, and secured not merely for exhibition of him to the commissioner and inquest — though that is doubtless one purpose — but also to give him full opportunity of defeating proceedings improper, for the want of foundation or legal conduct in any of its stages. It would be unprofitable to add other reasons for setting aside the inquisition. It is indeed impossible to sustain it against the fundamental objections that have been stated. But it may be added, that another commission cannot be issued by the court on the petition in this case, if such a thing should be desired. Pecuniary inconvenience is not that which the act contemplates as a ground for not appointing the trial at the party's residence. 16 Ves. Jr. 340. And here he resided on his farm in the county, actively, and as his neighbours testify, intelligently engaged in his proper vocation, unsuspected of any mental disorder, except by a few relations and others, who took their impressions from reports, or had their preconceptions from slight causes thus strengthened. In this condition he was surprised in Philadelphia, whither he had gone to sell his produce in the market, with the announcement that he was thought to be deranged — that he must abandon his affairs and go into confinement — and on the certificate of a physician who had not seen him for months, was made an involuntary inmate of the asylum at Frankford. Neither his health nor any known disposition to inflict injury on his friends or himself required such restraint as a measure of safety. Some occasional irregularities in his conduct are traced up from 1839 to 1847, and aggregated to found the fact of a distempered mind, and warrant this summary process; but at the time it was executed upon him he farmed well, made his bargains well, settled his accounts exactly, paid as punctually as most debtors, and had the good opinion of his neighbours, who, with few exceptions, esteemed him as a good housekeeper and farmer, as well as an intelligent citizen. A few of his acts may be considered blame-worthy, in the relation he bore to the parties complaining of them; but, on the testimony, they may well be ascribed to provocations which ought to have been avoided in his circumstances — at all events, one would think, it required but little charity to place them in the category of common occurrences in men's lives who are touched, as he is said to have been, with the infirmities of a nervous constitution. This seems to have been his misfortune, but the evidence does not satisfy the court that it affected his mind to any extent, for which an affectionate or discreet deference to his opinions and plans for a frugal husbandry, whilst the pressure of debt remained on him, would not have been the best remedy. His friends near him, however, thought otherwise; and had him declared a *183lunatic, on the testimony of physicians, who, to say the least, give us but a vague account of the moral insanity under which they believed him labouring. It is not necessary, on the question now before the court, to examine into the truth of that finding for more than to see whether it was inconvenient, in a legal sense, to have removed him to his residence for the purpose of executing the commission. The petitioner may have considered it so in reference to the trouble and expense, merely, and doubtless acted on some such view of the case. But that is not the view of the law, in the judgment of the court, where the facts show the party in the condition of Mr. Hinchman. Inquisition and the proceedings in the case are therefore set aside by the court.