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.] and an
     action would not lie at common law for a false return, unless the
     return be proved to have been made maliciously, as well as falsely,
     it should seem, by a parity of reasoning, that a person whose vote
     is refused by a returning officer, cannot maintain an action
     against him, unless the refusal be proved to have been wilful and
     malicious.  And if malice were necessary before the statute by the
     common law, and since by the statute which is declaratory thereof,
     to sustain an action for a false return which includes perhaps the
     votes of all, it seems equally necessary in an action like the
     present where the injury complained of is to one only.

“I do not mean to say, that in this kind of action, it is necessary to prove express malice.  It is sufficient if malice may be implied from the conduct of the officer; as if he had decided contrary to a last resolution of the House of Commons.  There I should leave it to the jury to imply malice.  But taking all the circumstances of this case together, malice can in no shape be imputed to the defendant.  The plaintiff may have a right to vote, but that depends upon an intricate question of law, with respect to burgage tenures; the right itself founded on ancient documents and usages, and not acted upon for many years....

“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.