" "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.
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