nation 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.)