Jenkins v. Waldron

Spercer, J. delivered the opinion of the court. It is not necessary to the decision of this cause, to pronounce any opinion on the question, whether Judge Edmonds was a judge de jure, or defacto, when he gave the certificate that the defendant had duly proved himself to be a free man; for, admitting that Judge Edmonds was either, this action, as laid, is not maintainable. It is not alleged or proved that the inspectors fraudulently or maliciously refused to receive Waldron’s vote; and this we consider to be absolutely necessary to the maintenance of an action against the inspectors of an election. The case principally relied on by the counsel for the defendant in error is that of Ashby v. White. (2 Ld. Raym. 938.) There the declaration alleged that the rejection of Ashby’s vote was done fraudulently and maliciously, and although the jury found the defendant guilty, the judgment was arrested by three judges, in opposition to the opinion of Chief Justice Holt. This judgment was afterwards reversed in the house of lords. The reasons for the reversal do not appear in the report of the case; but the ground of the reversal is distinctly stated in the resolutions of the lords, in answer to the resolutions of the commons, reprehending the bringing the action and the judgment thereon. The first resolution of the lords states, “ that by the known laws of this kingdom, every freeholder, or other person having a right to give his vote at the election of members to serve in parliament, and being wilfully denied, or hindered so to do, by the officers who ought to receive the same, may maintain an action in the queen’s courts against such officer, to assert his right, and to recover damages for the injury.” (1 Bro. Parl. Cas. 49. 1st edit.) The case of Harman v. Tappenden and others, (1 East, 555.) and Drewy v. Coulton, in a note to that case, clearly show that this action is not maintainable, without stating and proving 121 malice express or implied on the part of the officers. In the ease in the text, Lawrence, J. said, “ there is no instance of an action of this sort maintained for an act arising merely from error of judgment;” and he cited Mr. Justice Wilson's opinion in Drewy v. Coulton with approbation. In that case the suit was for refusing the plaintiff’s vote. Justice Wilson considered it as an action for misbehaviour by a public officer in the discharge of his duty, and that the act must be malicious and wilful to render it a misbehaviour; and he held that no action would lie for a mistake in law. In speaking of the case of Ashby and White, he considered it as having been determined by the house of lords on that ground, from the resolutions entered into by them. The whole of Judge Wilson's reasoning is clear, perspicuous, and irresistible; and is fully confirmed in Harman v. Tappenden. 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 deliberative judgments, are answerable for a mistake in law, either civilly or criminally, Whe,n their motives are pure, and untainted with fraud or malice» Judgment reversed,