Bush v. . Pettibone

Ruggles, J. At common law, a defendant can not be discharged from arrest in a civil suit on the ground that he was insane at the time of the arrest or became so afterwards. (Nutt v. Verney, 4 D. & E. 121; Kernott v. Norman, 2 id. 391.) He may be brought up and surrendered into custody in discharge of his bail, and of course may be imprisoned on a capias ad satisfaciendum, (3 B. & P. 550.) Lord Eldon, in Steel v. Allan, (2 id. 362,) said, “ I am afraid there is no prohibition in the law of England against arresting a lunaticand accordingly a motion to discharge an insane defendant out of custody upon a common appearance was denied. I find no authority in the laws of this state for discharging a party in a civil'suit from imprisonment, on the ground of his insanity, excepting in the “ act to organize the state lunatic asy lum, and more effectually to provide for the ca/re, maintmancc and recovery of the insane,” passed April 7, 1842. The object of this statute appears from its title. It is to “ provide for the care, maintenance and recovery” of the class of persons above mentioned. The 32d section relates to insane persons confined in jail for crime. That section contains, in substance, an authority for the removal of such persons, by order of the first judge of the county, from the jail to the lunatic asylum, where they are to remain until restored to their right minds, and then to be remanded to prison to be further prosecuted. The prisoner Horris King was discharged under color of the 33d section of the same statute. By that section it is enacted, *302 that if a person imprisoned on civil process becomes insane, and if it be proved to the satisfaction of the first judge that he is in-[302] sane, “ the judge may discharge him from imprisonment and order him into safe custody and to be sent to the asylum.” The creditor may renew his process and arrest him again, when of sound mind. .The object of discharging the prisoner under this statute was to provide for his care, maintenance and recovery; and this was to be effected by removing him to the asylum. This is to be inferred not only from the title of the act but from its other provisions, for the erection of extensive buildings for the reception of insane patients, containing accommodations for their comfort, and physicians, nurses and attendance, for their treatment and cure. The provisions of the statute are limited and confined to this object. It could not have been the intention of its framers to interfere between the creditor and his insane debtor for any other purpose than to receive the latter into the asylum. The discharge from the custody of the sheriff was authorized, because the insane man could not be taken to the asylum without it; and the discharge was intended to be subservient to that purpose only. This appears from the words of the act; the first judge “ may discharge him and order him into safe custody to be sent to the asylum.” That duty of sending to the asylum is inseparably connected by the statute with the exercise of the power of discharging. The duty is prescribed in the same sentence in which the power is created ; and if the duty be separated from the power, the object of the statute is no way attained. The power of discharging the prisoner without at the same time send ing him to the asylum, is not granted by the statute. The order of the first judge was a general discharge, leaving the prisoner to go at large, and was therefore fatally defective and void. The defect appeared on the face of the paper, and the sheriff was not at liberty to obey it. The judgment of the supreme court should be affirmed. Judgment affirmed.