] and an
action would not lie at common law for a false return, unless the
return be proved to have been made maliciously, as well as falsely,
it should seem, by a parity of reasoning, that a person whose vote
is refused by a returning officer, cannot maintain an action
against him, unless the refusal _be proved to have been wilful and
malicious_. And if malice were necessary before the statute by the
common law, and since by the statute which is declaratory thereof,
to sustain an action for a false return which includes perhaps the
votes of all, it seems equally necessary in an action like the
present where the injury complained of is to one only.
"I do not mean to say, that in this kind of action, it is necessary
to prove _express_ malice. It is sufficient if malice may be
implied from the conduct of the officer; as if he had decided
contrary to a last resolution of the House of Commons. There _I
should leave it to the jury to imply malice_. But taking all _the
circumstances of this case together, malice can in no shape be
imputed to the defendant. The plaintiff may have a right to vote,
but that depends upon an intricate question of law, with respect to
burgage tenures_; the right itself founded on ancient documents and
usages, and not acted upon for many years.
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