Judgment of the Court
THE CHIEF JUSTICE, (Oral.)-As we are all of opinion that this appeal must be dismissed, we do not call upon the learned counsel for the respondent.
I am very clear that in deciding this appeal we are not bound by the judgment of the Superior Court in the matter of the mandamus; but, even if we were, there are other grounds, in which we all concur, in holding the action not maintainable.
In order to uphold the judgment of the Superior Justice.
Court in the present action we should have to determine three points in the appellant's favour: First, that the municipal council could exercise no discretion in the matter of confirming the certificate; secondly, that the council in refusing to confirm acted not in good faith but with the malicious intention of injuring the appellant; and thirdly, that such an action as this is maintainable against the municipal corporation for the alleged acts and conduct of the members of the council.
We think the appellant must fail in all these essential points.
The council clearly had a discretion for the exercise of which no action will lie; further, there is no evidence of malice (even if that would have sufficed), and such an action as this would not lie against the municipality, even if the two former essential grounds were established in the appellant's favour.
The appeal is dismissed with costs.
Appeal dismissed with costs.