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.... "_From these grounds, therefore, it cannot be inferred that the defendant has acted wilfully and maliciously in refusing the plaintiff's vote; and unless that be so he is not liable in this action._ ... "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.