...
"_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.
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