...  “But without determining whether the statute be declaratory of the common law, or not; if not, the case rests on that of Ashby v.  White.  Now all the debates and arguments in that case go upon the malice; and all those who have acted on that determination since have considered that the refusal must be wilful and malicious in order to support the action....

“And in my opinion, it cannot be said, that because an officer is mistaken in a point of law, this action will lie against him....  It has also been said, that this is not like a case where a burdensome office is thrown upon a man, without his consent, wherein he is compellable to act; for that here the defendant has chosen to become a member of a corporation by which he had put himself in a situation to become a returning officer, and therefore that he is bound to understand the whole law as far as it relates to his public situation, and is answerable for any determination he may make contrary to that law.  But I much doubt whether that rule be generally true; and in the present instance I am clearly of opinion that the want of malice is a full defense.”

Lawrence, J., sat with Wilson.

The plaintiff was nonsuited and no new trial was moved for.

Bernardiston v.  Some (2 Lev. 114, 1 East. 586, note b.) was an action against the sheriff of Suffolk, charging that the defendant, intending to deprive him of the office of Knight of the Shire, made a double return.  Upon a trial at bar, Twysden, Rainsford, and Wylie Js. held, and so directed the jury, that if the return was made maliciously, they ought to find for the plaintiff, which they did and gave him L800.  On motion in arrest of judgment, Hale, C.J., being in court; he, Twysden & Wylie, Js. held that for as much as the return was laid to be falso et malitiose et ea intentione, to put the plaintiff to charge and expense, and so found by the jury, the action lay.  Rainsford, J., doubted.  But notwithstanding this charge of malice, judgment was reversed in Cam scacc (vide 3 Lev. 30) and that judgment of reversal was affirmed in Parliament.  Lord Chief justice North’s first reason against the action was, because the sheriff as to declaring the Mayoralty is judge and no action will lie against a judge for what he does judicially, though it should be laid falso malitiose et scienter.  This reversal occasioned the passage of the statute (7 and 8 W. III c. 7) which gives an action against the returning officer, for all false returns “wilfully made, and for double returns falsely, wilfully and maliciously made.”

Groenvelt v.  Burwell & al (1 Salk. 396, S.C. 2 Ld Ray. 230, Comyns 76.) In this case, the Censors of the College of Physicians and Surgeons, in London, were empowered to inspect, govern and censure, all practices of physic in London—­and to punish by fine and imprisonment.  They convicted the plaintiff of administering noxious medicines, and fined him L20, and imprisonment 12 months.  Being taken in execution, he brought trespass against the Censors.  It was held