Lawrence Jenkins, K C I E C J

[1] Though several questions are raised in this suit and have been decided in the lower Courts, we think there is only one on which we ought to express an opinion ; and that is, whether the present suit lies

[2] The acting District Judge has held that it does not, and he has come to that conclusion because in his opinion malice is necessary to such a suit, and he holds that there is no malice.

[3] The case appears to us to be one to which the language of Lord Chief Justice Abbot in Cullen v. Morris (1819) 2 Stark. 577 is peculiarly applicable. It may be said here, as it was said there, that the Officer is to a certain degree a ministerial one but he is not so to all intents and purposes; neither is he wholly a judicial Officer, his duties are neither entirely ministerial nor wholly judicial, they are of a mixed nature. It cannot be contended that he is to exercise no judgment no discretion whatsoever... the greatest confusion would prevail if such a discretion were not to be exercised. On the other hand, the Officer could not discharge his duty without great peril and apprehension, if in consequence of a mistake he became liable to an action. It has been urged that Lord Holt, who with great honour to himself once filled this seat, intimated his opinion that the mere refusal of the vote of a person entitled to vote would give the party a right to sue the returning officer. Whether he ever did say so or not, we do not certainly know for the Reports of that case are very imperfect. No one entertains a greater veneration for that learned Judge than I do, but if he did so express himself I am bound to deliver my opinion that he was mistaken."

[4] In our opinion it would be unreasonable to hold that an Officer, who had to perform the functions allotted to the defendant, was liable to a suit because he made a mistake in good faith in determining questions that arose for his decision. We do not say that the defendant did make a mistake, for in the view we take that question does not arise for our decision, but assuming, that he made a mistake, still, we think, that in the absence of malice no suit can lie against him.

[5] For these reasons the decree of the lower appellate Court must be confirmed with costs.