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 £800. 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 £20, and imprisonment 12 months. Being taken in execution, he brought trespass against the Censors. It was held
1. That the Censors had judicial power.
2. That being judges of the matter, what they had adjudged was not traversable. That the plaintiff could not be permitted to gainsay, what the Censors had said by their judgment—that the medicines were noxious.
3. Though the medicines were really good, yet no action lies against the Censors, because it is a wrong judgment in a matter within the limits of their jurisdiction; and a judge is not answerable, either to the King or the party, for the mistakes or errors of his judgment in a matter of which he has jurisdiction; It would expose the justice of the nation, and no man would execute the office upon peril of being arraigned by action or indictment for every judgment he pronounces.
All that I have quoted from the English cases and our own to show that malice must be proven to make out the offense, is expressly contained in the statute under which this indictment is framed. The words are (Sec. 19) "shall knowingly and wilfully receive the vote of any person not entitled to vote." (And Section 20 as amended) "If any such officer shall knowingly and wilfully register, as a voter any person not entitled to vote."
And wilfully means, to use the language of Mr. Justice Wilson, "contrary to a man's own conviction."
If it be said that the defendants must be presumed to know the law, that is answered above by the quotations from the opinion of Mr. Justice Wilson.