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_.
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