In Jenkins vs. Waldron (11 John 114), which was an action on the case against inspectors of election for refusing to receive the vote of the plaintiff, a duly qualified voter, it was held, that the action would not lie without proving malice. Spencer, J., delivering the opinion of the Court, closes as follows: "It would in our opinion be opposed to all the principles of law, justice and sound policy, to hold that officers called upon to exercise their deliberate judgments, are answerable for a mistake in law, either civilly or criminally, where their motives are pure and untainted with fraud or malice."
The same point precisely was decided in a like case, in the Supreme Court of this State recently and Jenkins vs. Waldron approved.
Goetchens vs. Mathewson, 5 Lansing, 214.
In Harman v. Tappenden and fifteen others (1 East 555) the plaintiff was a freeman of the company of free fishermen and dredgermen of the manor and hundred of Faversham in Kent, and the defendants, as officers of the company, caused him "wrongfully, unlawfully and unjustly" to be disfranchised, and removed from his said office of freeman. He was restored by mandamus, and brought his action on the case against the defendants who removed him, to recover his damages.
On the trial before Lord Kenyon, C.J., a verdict was taken for the plaintiff for nominal damages, with leave to the defendant to move to enter a non-suit.
On that motion Lord Kenyon, C.J., said:
"Have you any precedent to show that an action of this sort will lie, without proof of malice in the defendants, or that the act of disfranchisement was done on purpose to deprive the plaintiff of the particular advantage which resulted to him from his corporate character? I believe this is a case of the first impression, where an action of this kind had been brought, upon a mere mistake, or error in judgment. The plaintiff had broken a by-law, for which he had incurred certain penalties, and happening to be personally present in the court, he was called upon to show cause why he should not pay the forfeitures; to which not making any answer, but refusing to pay them, the court proceeded, taking the offense pro confesso, without any proof, to call on him to show cause why he should not be disfranchised; and they accordingly made the order. This was undoubtedly irregular, but it was nothing more than a mistake, and there was no ground to impute any malicious motives to the persons making the order."
Lawrence, J., said:
"There is no instance of an action of this sort maintained for an act merely from error of judgment. Perhaps the action might have been maintained, if it had been proved that the defendants' contriving and intending to injure and prejudice the plaintiff, and to deprive him of the benefit of his profits from the fishery, which as a member of this body he was entitled to, according to the custom, had wilfully and maliciously procured him to be disfranchised, in consequence of which he was deprived of such profits. But here there was no evidence of any wilful and malicious intention to deprive the plaintiff of his profits, or that they had disfranchised him with that intent, which is necessary to maintain this action. They were indeed guilty of an error in their proceedings to disfranchise him, in not going into any proof of the offence charged against him, but taking his silence as a confession. In the case of Drewe v. Coulton, where the action was against the Mayor of Saltash, who was returning officer, for refusing the plaintiff's vote at an election, which was claimed in right of a burgage tenement; Wilson, J., nonsuited the plaintiff because malice was not proved; and he observed, that though Lord Holt, in the case of Ashby v. White, endeavored to show that the action lay for the obstruction of the right, yet the House of Lords, in the justification of their conduct, supposed to be written by the Chief Justice, puts it upon a different principle, the wilfulness of the act. The declaration in that case was copied from the precedent in Milward v. Sargeant, which came on in this court on a writ of error, Hill 26, Geo. 3, for refusing the plaintiff's vote for the borough of Hastings. There the charge was 'that the defendant contriving and wrongfully intending to injure and prejudice the plaintiff, and to hinder and deprive him of his privilege of voting, did not take or allow his vote.' All which allegations Mr. Justice Wilson, in the case above alluded to, thought were essential to be proved in order to sustain the action."
"Per Curiam. Rule discharged."