Jenkins v. Waldron

An action on not lie against oiTanneíectionJ for refusing the vote of a person legally qualified to vote, -without proving malice plied.' redChyS \zvFto judgments^are not answerable for mistakes in law or mere ment,S wiíhont any fraud or malice.

IN ERROR, on certiorari, from a justice’s court. Waldron brought an action on the case against Seth Jenkins,- Erastus Praííi Daniel Clark, and William Coventry, the plaintiffs in error, as inspectors of the election held in Hudson, in Columbia x. , * •, county, in April, 1811, for refusing to receive his vote, as aisf i . & elector, ccc. The plaintiff below stated, in his declaration, that the defendants below were inspectors of the poll in the city of Hudson, at the general election in 1811; that the plaintiff was duly qualito vote for members of the assembly; that he tendered his vote to the defendants, and that they wickedly and designedly , , . ... ..... refused his vote, and would not permit him to exercise his right °f suffrage; to his damage, &c. The defendants pleaded the-general issue, ° The following facts appeared in the justice’s return, as proved and admitted on the trial before him. The defendants below were duly elected and sworn as inspectors, at the general election, in 1811, and acted as such when the plaintiff below offered his vote at the poll for members of assembly. The.plaintiff is a black or coloured man; and at the time he offered his vote he tendered-a certified copy of a certificate of his being a free man, under the hand and seal of Samuel Edmonds, one of the judges of the court of common pleas of the county of Columbia, dated 9th April, 1811, which certificate was recorded in the office of the clerk of the town of Livingston, and the copy was certified by the clerk of that town. The plaintiff offered, at the same time, to make any other proof of his qualification to vote that the inspectors might require, and to take the oaths required by law. The defendants below rejected the plaintiff’s vote, solely on the ground that Samuel Edmonds, at the time of giving the certificate of freedom, Was not a judge according to law, and, therefore, not authorized to give the certificate. The inspectors declared they did not require any other proof of the plaintiff’s qualification to vote, except a different certificate, or such a one as they should deem legal and valid. One of the inspectors presented to the board his written protest against their decision, and which was produced at the trial. Before the decision of the defendants, the plaintiff presented to them a certificate of the clerk of the county of Columbia, that • pn the 20th of March, 1810, Samuel Edmonds was appointed one of the judges of the court of common pleas of the county of Columbia, as by a certain commission, &c. remaining in the office of the clerk, &c. and that no supersedeas had been received for the said Samuel Edmonds, at the clerk’s office, unless a new general commission of the pleas, which was received at the office, the 11th March, 1811, in which his name is not inserted, is to be considered as a supersedeas. The plaintiff had, for 8 or 10 years previous to the election in 1811, voted for members of assembly, and at some of the elections during that period, some of the defendants were inspectors of the poll and received the plaintiff’s vote. Samuel Edmonds, from the date of commission down to the time of trial, had constantly continued to perform the duties, and exercise the powers, of a judge of the court of common pleas, Scc. and before and since the month of April, 1811, as such judge, took the proof and acknowledgments of deeds, mortgages, and bail pieces, which were filed and recorded in the clerk’s office, and performed all other acts pertaining to his office as such judge, of which the defendants were informed by him, previous to their rejection of the plaintiff’s vote. The exemplification of the commission, under the great seal, to Edward P. Livingston, Samuel Edmonds and others, judges of the court of common pleas, dated the 20th March, 1810, and recorded in the clerk’s office the 29th March, 1810, was given in evidence: also a commission, dated 5th March, 1808, to Jonathan Warner and others, in which the name of Edmonds was not inserted as one of the judges, &c. and another commission dated the 2d March, 1811, directed to Jonathan Warner and others, in which the name of Samuel Edmonds was not inserted, as one of the judges, &c. There was no other commission of judges of the court of common pleas issued, and it appeared that Samuel Edmonds took the oaths under the commission of 1810; and that commission was seen and examined by the defendants before they rejected the plaintiff’s vote. The clerk of the county had inserted in a gazette printed at Hudson, where Samuel Edmonds resides, a notice of the appoint» ffi'ent tif the persons named in the commission of 1811, as judges. justices, &c. among which the name of Edmonds did not appear. It appeared, further, that before Samuel Edmonds gave the certificate of the plaintiff’s freedom, the clerk of the county had sent to him a notice in writing, stating that “ a commission of the peace for the county was received at his office, on the 11th March, directed to William Wilson and others, in the words following: “ Know ye that we have appointed and assigned, and by these presents do appoint and assign, you and every of you,, jointly and severally, justices, to keep the peace in our county of Columbia,” &c. “ in which commission your name was not inserted, dated the 9th April, 1811. M. Jenkins, clerk. To Samuel Edmonds, Esq.” which notice was received by Edmonds on the 10 th April, 1811. The justice stated further, that there was no evidence whatever given, at the trial, to show that the defendants, in the rejection of the vote of the plaintiff, were actuated by any corrupt or malicious motives towards the plaintiff, or by any other wish dr desire than to discharge their duties as inspectors. A certificate of Elisha Jenkins, the secretary of state, was also produced, stating that on examination of the minutes of the council of appointment it did not appear that it had ever been the practice of the council to direct a supersedeas to any judge, assistant justice, or justice of the peace, in any county, in cases where a new general commission was directed to issue, in which hny judge, assistant justice, or justice of the peace, who was previously in the exercise of his office, by any commission; general or special, was not named. ■ On this evidence the counsel for the defendants below moved for a nonsuit, which was refused by the justice, who gave judgment for the plaintiff, for three dollars damages, and the costs. .