vote at an election, which was claimed in
     right of a burgage tenement; Wilson, J., nonsuited the plaintiff
     because malice was not proved; and he observed, that though Lord
     Holt, in the case of Ashby v.  White, endeavored to show that the
     action lay for the obstruction of the right, yet the House of
     Lords, in the justification of their conduct, supposed to be
     written by the Chief Justice, puts it upon a different principle,
     the wilfulness of the act.  The declaration in that case was
     copied from the precedent in Milward v.  Sargeant, which came on
     in this court on a writ of error, Hill 26, Geo. 3, for refusing
     the plaintiff’s vote for the borough of Hastings.  There the charge
     was ’that the defendant contriving and wrongfully intending to
     injure and prejudice the plaintiff, and to hinder and deprive him
     of his privilege of voting, did not take or allow his vote.’  All
     which allegations Mr. Justice Wilson, in the case above alluded to,
     thought were essential to be proved in order to sustain the
     action.”

     “Per Curiam. Rule discharged.”

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