¶1The statute respecting the care and custody of the insane •(chapter 446, Laws 1874) does not deprive the alleged lunatic of the right of trial by jury. It does, however, provide for his summary and temporary confinement “ upon the certificate of two physicians under oath, setting forth the insanity of such person.” But this confinement is “for the care and treatment” of the insane party. This confinement must not exceed “five days, unless within that time such certificate be approved by a judge,” etc. Obviously, these are humane provisions intended to secure proper care and treatment for the insane, and to protect third persons from their irresponsible violence. The judge “may institute inquiry and take proofs as to any alleged lunacy before approving or disapproving such certificate; and … may, in his discretion, call a jury in each case to determine the question of lunacy.” The defendant contends that “may,” as here used, means “must,” because the rights of the public and of third persons are concerned, and that there can •be no relaxation of statutory safeguards in favor of liberty. Conceding the general rule to be as claimed, it is obvious from the nature of the case, and from the words of the statute, that the judge is vested with a discretion adequate to the exigency. Some cases are too plain to admit of doubt; others are ■doubtful. The judge must act as he thinks most wise, under circumstances which sometimes must be painful, but leaving no doubt as to the propriety of .prompt and decisive action, and at other times of such doubt and delicacy as to suggest every precaution the statute affords. But when summary action has been taken, and the alleged lunatic is confined upon the certificate of the physicians approved by the judge, the lunatic himself, or any friend in his behalf, “may, within three days after such order or decision, appeal therefrom to a justice of the supreme court, who shall thereupon stay his being sent out of the county, and forthwith call a jury to decide upon the fact of lunacy.” Section 11. Such an appeal was taken in this case, and the jury pronounced the plaintiff sane, and he was thereupon discharged.
¶2The plaintiff urges that by his confinement until his discharge he was deprived of his liberty without due process of law or the judgment of his peers. Oonst. art. 1, § 1. A person charged with felony is first arrested, and, upon *340examination before the magistrate, committed to jail to await the action of" the grand jury. He may not be indicted, or, if indicted, may be acquitted upon trial. Meanwhile, he lies in jail awaiting his discharge upon the final judgment of the law that he is not guilty. In the absence of a malicious-prosecution it has never been alleged that he was deprived of his liberty without due process of law or the judgment of his peers. The state cannot take all steps at once; and when provision is made that they shall be taken one-after another, with reasonable care and expedition, in the manner and form approved by experience and sanctioned by law; the individual, who, as it must sometimes happen, suffers a temporary deprivation of liberty, must necessarily remain without remedy. The state provides the best system its wisdom suggests, but so long as it must be administered by men it cannot guaranty against occasional mistakes.
¶3The defendant the recorder had the power’s of a judge of a court of record-His approval of the certificate of the physicians was a judicial act. It was an-act analogous to the issuing of a warrant for the arrest of an alleged criminal upon information verified by oath. If the information fills the requirements-of the statute, the magistrate’s jurisdiction is complete. But the information may be incomplete in fact. Some essential specified in the statute may be omitted. The magistrate may not be learned in the law, or, if learned,. not always sound3 in judgment. He looks at this information, and decides that a case exists, when in fact and in law there is no case. He issues his. warrant when he ought not, and the result is that a man who has committed no crime, and against whom no crime is alleged, is arrested, and temporarily deprived of his liberty. In one aspect of the case the magistrate had no jurisdiction, because the law gives him no jurisdiction to issue a warrant unless it appears that an offense has been committed, and there is reasonable-cause to believe that the accused committed it. A j udge upon habeas corpus ought to decide that the magistrate had no jurisdiction to issue the warrant* Why, then, cannot the magistrate be pursued by the injured individual ? Because, when the information was presented to him, it was his duty to decide-what his duty was respecting it. He had jurisdiction of that question, and his wrong decision upon it was a judicial error. Hq had a duty to perform, and the law does not punish him for á mistake in trying to do it right. In Lange v. Benedict, 73 N. Y. 35, the judge pronounced a sentence which he-had no jurisdiction to pronounce, but he supposed he had, and it was his duty to decide whether he had or not. He had the statute for his guide; but he had to interpret the statute, and he did not interpret it aright. But he had to decide; he was no mere volunteer. He made a mistake; but he made it, in the discharge of his master’s (the government’s) business, and his wrongful act was the government’s, not his own, and he incurred no personal liability.
¶4Ho cause of action is stated in the complaint against the recorder. 'The charge of a lack of due and ordinary care and prudence adds no support to a charge of liability for judicial acts. Public policy forbids that a disappointed suitor should be clothed with such a weapon with which to smite or annoy a judge who decides against him.
¶5The defendants the physicians were such experts as the statute authorizes to make the certificate of the plaintiff’s insanity. Ho allegation is made in the complaint of a defect of a proper request or information upon which they proceeded to examine the- plaintiff and make their certificate, and none can be presumed. The physicians followed the forms of the law. Whether the reasons set forth by them in the certificate for their conclusion that the plaintiff was insane were sufficient or not is immaterial. The presumption, is that they set forth such reasons as, in their opinion, were sufficient, and such as appeared to them to be true in fact. But the complaint charges that the physicians made the certificate “without proper and ordinary care and *341prudence, and without due examination, inquiry, and proof into the fact whether plaintiff was sane or insane.” We think the physicians owed the plaintiff the duty of making the examination with ordinary care. Their duty must be measured by the trust which the statute reposes in them, and by the consequences flowing from its improper performance. They assumed the duty by accepting the trust. They are not judicial officers, but medical experts. They are not clothed with judicial immunity, and are chargeable with that negligence which attaches to a professional expert who does not use the ■care and skill which his profession, per se, implies that he will bring to his professional work.
¶6It is urged that the physicians are privileged by the statute, and their certificates are privileged communications. Doubtless this is true if they discharge their duty with ordinary care; but in the absence of such care their privilege cannot protect them. Their privilege is that, so long as they do their duty with the care and skill the statute presumes and requires, they are not responsible to the plaintiff for the consequences, however harsh they may be; for in such a case the law afflicts the plaintiff, but when they do not use such care and skill it is their personal negligence which afflicts him.
¶7The remaining question is whether the complaint sufficiently alleges negligence upon the part of the physicians. They urge that facts are not stated, but only conclusions of law. We think, however, that the portion of the •complaint above quoted, imputing negligence, is a statement of conclusions of fact. Plainly, if all the details wereset forth, the sum of which would amount to the charge of negligence, the complaint would be open to the objection of pleading evidence. All the evidence may be set forth in a complaint without setting forth any case at all. The charge of negligence embraces the sum of all the evidence necessary to establish it, and is therefore a conclusion of fact.
¶8The judgment of the special term is reversed as to the defendants Bussell and O’Leary, and their demurrer overruled, with costs of this court and of the ■court below, with the usual leave to withdraw the demurrer, and answer on payment of costs, and is affirmed as to the defendant Gould, with costs.
¶9I 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.
¶10I 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?
¶11I 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.
¶12*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.