The Reporter's head note is: "An action does not lie against individuals for acts erroneously done by them in a corporate capacity from which detriment has happened to the plaintiff. At least, not without proof of malice."
The case of Drewe v. Coulton is given at length in a note to Harman v. Tappenden and others 1 East 563, and fully sustains what is said of it by Mr. Justice Lawrence.
The election was for member to serve in Parliament for the borough of Saltash. The defendant was Mayor and returning officer. The question presented to him was "whether the owners of burgage tenements in the borough, had a right of voting, or whether that right was confined to the freemen of the corporation." The defendant had rejected the vote offered by the plaintiff, he claiming the right as a burgage tenant.
The action was for that refusal, charging the defendant with "contriving and wrongfully intending to deprive the plaintiff &c., obstructed and hindered him from giving his vote."
Wilson, J., among other things, says:
"This is in the nature of it, an action for misbehavior by a public officer in his duty. Now I think, that it cannot be called a misbehavior, unless maliciously and wilfully done, and that the action will not lie for a mistake in law. The case of the bridge master is in point [Bul N.P. 64.]. It is there said, that an action on the case lies against a ministerial officer for wilful misbehavior, as denying a poll for one who is a candidate for an elective office, such as bridge master &c." "In all the cases put, the misbehavior must be wilful and by wilful I understand contrary to a man's own conviction. Therefore I think from the opening of counsel, this is not a wilful refusal of the vote.... In very few instances is an officer answerable for what he does to the best of his judgment, in cases where he is compelled to act. But the action lies where the officer has an option whether he will act or not. Besides, I think, that if an action were to be brought upon every occasion of this kind by every person whose vote was refused, it would be such an inconvenience as the law would not endure. A returning officer in such a case would be in a most perilous situation. This gentleman was put in a situation where he was bound to act; and if he acted to the best of his judgment it would be a great hardship that he should be answerable for the consequences, even though he is mistaken in a point of law. It was a very material observation of Mr. Gibbs, that the words of the resolution of the House of Lords in Ashby v. White followed the words of the statute of William III. For if that statute were declaratory of the common law, as it purports to be ['Be it enacted and declared that all false returns wilfully made' &c.] and an action would not lie at common law for a false return, unless the return be proved to have been made maliciously, as well as falsely, it should seem, by a parity of reasoning, that a person whose vote is refused by a returning officer, cannot maintain an action against him, unless the refusal be proved to have been wilful and malicious. And if malice were necessary before the statute by the common law, and since by the statute which is declaratory thereof, to sustain an action for a false return which includes perhaps the votes of all, it seems equally necessary in an action like the present where the injury complained of is to one only.
"I do not mean to say, that in this kind of action, it is necessary to prove express malice. It is sufficient if malice may be implied from the conduct of the officer; as if he had decided contrary to a last resolution of the House of Commons. There I should leave it to the jury to imply malice. But taking all the circumstances of this case together, malice can in no shape be imputed to the defendant. The plaintiff may have a right to vote, but that depends upon an intricate question of law, with respect to burgage tenures; the right itself founded on ancient documents and usages, and not acted upon for many years....
"From these grounds, therefore, it cannot be inferred that the defendant has acted wilfully and maliciously in refusing the plaintiff's vote; and unless that be so he is not liable in this action.
... "But without determining whether the statute be declaratory of the common law, or not; if not, the case rests on that of Ashby v. White. Now all the debates and arguments in that case go upon the malice; and all those who have acted on that determination since have considered that the refusal must be wilful and malicious in order to support the action....
"And in my opinion, it cannot be said, that because an officer is mistaken in a point of law, this action will lie against him.... It has also been said, that this is not like a case where a burdensome office is thrown upon a man, without his consent, wherein he is compellable to act; for that here the defendant has chosen to become a member of a corporation by which he had put himself in a situation to become a returning officer, and therefore that he is bound to understand the whole law as far as it relates to his public situation, and is answerable for any determination he may make contrary to that law. But I much doubt whether that rule be generally true; and in the present instance I am clearly of opinion that the want of malice is a full defense."