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