The late Lord Chief Justice NORTH'S ARGUMENT. In the CASE Between Sir WILLIAM SOAMES, SHERIFF of SUFFOLK, And Sir SAM. BARNADISTON, Bar. Adjudged in the COURT of Exchequer Chamber. UPON A WRIT of ERROR, CONTAINING The REASONS of that JUDGEMENT.  
LONDON, Printed and are to be sold by Randal Taylor. 1689.   

The late Lord Chief Justice North's Argument, etc.  
SIR Samuel Barnardiston brings an Action upon the Case in B. R. against Sir William Soame, late Sheriff of Suffolk, setting forth that a Writ issued for the choosing of a Knight for that County to serve in this Parliament instead of Sir Henry North deceased, that at the next County Court the Freeholders proceeded to Election; and although the Plaintiff was duly chosen per majorem numerum gentium tunc resident. infra dict. Comitat. quorum tunc quilibet expendere potuit 40 s. libri ten'ti & ultra per annum infra Comitat. illud, ac licet praedictus Willielmus, praemissa satis sciens, postea brevem praed. in Cur. Cancellar. returnavit, simul cum quadam Indentura inter ipsum Vicecomitem & praedict. Electores ipsius Samuelis de praedicta Electione ipsius Samuelis fact. secund. Exigentiam brevis praedict. praedictus tamen Willielmus ad tunc Vicecomes Officii sui debitum minime ponderans, sed machinans & maliriose intendens ipsum Samuelem in hac parte minus rite praegravare, ac eundem Samuelem de fiducia, & officio unius Mil. Comitat. praedict. in dict. Parliamento exercend. omnino frustrare, & deprivare, Et praedict. Samuelem ad diversas magnas & grandes pecuniarum summas expend. causare, contra debitum officii sui praed. falso, malitiose, scienter & deceptive, ad tunc in ead. Cancellar. apud Westmonast. praedict. retornavit una cum Indentura praedict. quandam aliam Indenturam eidem brevi similiter annex. specificant' illam fore fact. inter prefat. Willielmum, etc. ex una parte, & diversas alias personas dict. Comitat. in Indentura illa specificat. & continent, quod dictae al. personae, ut major pars totius Comitat. praedict. in praedicto pleno Comitat. elegerunt quend. Lionellum Talmash Bar. alias dict. Lionel Dom. Huntingtowr in Regno Scotiae in loco praedicti Henrici North un. Mil. Com. Suffolk predict pro Parliamento praedicto adveniend. eidem Parliamento pro Com. il. Vbi revera praedictus Lionellus non fuit electus per majorem partem, prout per ult. Indent. falso supponitur, Ratione cujus quidem falsi return. de praedicta al. Indent. etc. idem Samuel, in Domum inferiorem pro Comitat. hujus. Regni Angliae, etc. assemblat. admitti non potuit, quousque idem Samuel. per petitionem suam Comitat. dicti Parliamenti pro remedio congruo exhibit, & post diversas ingentes denar, summas in & circa manifestationem & verificationem dictae Electionis coram dict. Comitat. expendit & diversos labores in ea parte sustent. postea scil. etc. per Comitat. in Domum Comitat. praedict. admissus fuit & electio ipsius Samuelis per Comitat. declarat▪ fuit fore bond, unde deteriat. est, & damnum habet ad Valenc' 3000 l.  
There is a Verdict given for the Plaintiff, and Damages found to the value of 800 l. and Judgement thereupon, and a Writ of Error is brought to reverse that Judgement.  
I have but little time left me to say what I have to offer, it being very late, and yet I must desire leave to produce these Reasons I have in maintenance of my Opinion, I will be careful to detain you no longer then will be necessary.  
And therefore I will not trouble you to State the Case again, nor will I speak of any Exceptions that have been made to the Declaration, for I love not the Niceties of the Law, in Cases where they do prevail; and in this Case I have only considered the foundations of the Action, which if I had found well established upon Reason, or the Grounds of Law, I would have Examined what has been Objected to the Forms of the Declaration, which must have brought great weight to have overturned those Proceed. But as to the point of the Action, upon the most serious Consideration I could have of it, and weighing what hath been before now, and also at this time said in Support of it, I am of Opinion that the Judgement ought to be reversed, for that no such Action (as this at Bar) does lie by the Common Law.  
Because this is a Cause of considerable value, great Damages being recovered, because it is a Judgement of great Authority, being upon a Cause tried at the King's Bench Bar, and given upon deliberation there, because it is a Case of extraordinary nature, and of great import, each Party pretending benefit to the Parliament by it; because it is an Action primae impressionis, that never was before adjudged, the report of which will be listened after. I have taken pains to collect and set down the Reasons that I must go upon in determining this Case, That as the Judgement had the Countenance of some deliberation in the Court where it was given; so the Reversal being with greater deliberation, may appear grounded upon Reasons that ought to prevail.  
I can say with my Brother Wyndham, that I love rather to affirm Judgements than to reverse them; but I can attribute nothing of Authority to the Judgement, though it were given in a Superior Court, and upon deliberation; I must judge upon it as if the Case came to be Originally judged by me. The Argument to support a Judgement from the Authority of its self is Exceptio ejusdem rei cujus petitur dissolutio, which must not be admitted in Case of Writs of Error. We are instructed to Examine, and Correct the Errors of that Court, and for that purpose we are made Superior to it. We must proceed according to our own Knowledge and Discretion, else we do not perform the Trust reposed in us.  
I must needs say this is a Cause that imports it more than any Cause I have known come before us, for it is a Cause primae impressionis, and the Question is, whether by this Judgement, a change of the Common Law be introduced?  
It is the principal use of Writs of Error and Appeals to hinder the change of the Law, and therefore Writs of Error in our Law, and Appeals in the Civil Law do carry Judgements and Decrees to be Examined by Superior Courts, until they come to the highest who are entrusted, that they will not change the Law.  
Therefore do Writs of Error lie from Ireland which is a Subordinate Kingdom to England, by whose Laws it is Governed, that they might not be able to change the Law by their Judgements, and not so much for the particular right of the Party. For otherwise it would be very easy for Judges by Construction and Interpretation to change even a Written Law; and it would be most easy for the Judges of the Common Laws of England, which are not Written, but Deputed upon Usage, to make a change in them, especially if they may justify themselves by such a Rule as my Brother lays down to support this Case, sc. That the Common Law complies with the Genius of a Nation; but when that Genius changes, the Parliament is only entrusted to judge of it, and by changing the Law, to make it suitable to it. But if Judges will say it is Common Law, because it suits with the Genius of the Nation, they may take upon them to change the whole, as well as any part of it; the Consequence whereof may easily be seen, I wish we had not found it by sad Experience.  
If the Case at Bar be a change of the Law, it is happy that it comes to be Questioned in the first Instance, for if this Cause had been any way Agreed or Quit, and a second Case of this nature had been Questioned, there would have been Precedent urged, which cannot be spoke of it; for this Case hath no fellow, there never having been the like Judgement before.  

The Method I shall take in what I have to say shall be,  

1. To remove some Prejudice the Case is under.  
2. Give my Reasons against the Action.  
3. Weigh what hath been said to maintain the Action.   
The Case is under this Prejudice that an Action of the Case lies for false Retorns of Sheriffs, and why should it not lie in this Case, as well as any other.  
To remove this Prejudice, I shall show some material difference betwixt the nature of Ordinary Retorns, and this return.  
In Ordinary Retorns the Party is concluded, and absolutely without remedy, for the Court must take the return as the Sheriff makes it.  
In Ordinary Cases the Sheriff may and frequently does take Security of the Plaintiff, or the Sheriff hath means by Law to be secure; as if he doubts the property of the Goods, he may return a Fieri facias, Nullus benit ad monstrandum bona. In some Cases he may for his Safety Impannel a Jury, as upon an Elegit; or he may resort the Court, and pray a reasonable time to prepare his return, if the matter be difficult; and hath other shelters, that if he be away he may save himself from Danger.  
But in this Case the Party is not concluded, for upon a Petition to the Parliament, if they see it just, they will cause the return to be altered by the Clerk of the Crown, if the Sheriff be not in the way; In this Case the Sheriff may not take Security, it were Criminal in him to make such a return by Compact: Nor can the Sheriff make a fruitless return, or obtain delay to consult his Safety.  
These differences are of that nature, that they change the Case in the reason of it, as I shall hereafter make appear; and no Man can infer, because an Action lies for false Retorns in Ordinary Cases, therefore it lies in a Case of a return to Parliament, where the Sheriff is clearly upon other terms.  
My Reasons against this Action are all applicable to this Case, and make it different from all the Cases that have been put by my Brothers, that Argued for the Action. I observe, that they Argued only upon Generals, without any other application to this Case, and then by a Topick of concluding a Minori ad majus, because Actions lie in Cases of inferior nature, therefore it will lie in this; which Rule holds not in divers Cases, where there are particular Reasons to the contrary, as I shall by and by show to be in this.  
My First Reason is this, because the Sheriff, as to the declaring the Majority, is a Judge; and no Action will lie against a Judge for what he does Judicially, though it should be laid falso, malitiose & scienter, as appears 1 Co. Rep. fol. 24. They that are entrusted to judge aught to be free from Vexation, that they may determine without Fear; the Law requires Courage in a Judge, and therefore provides Security for the support of that Courage.  
But First, Is the Sheriff a Judge in this Case? Secondly, Is there the same Reason he should be free from all Action?  
As to the First, it is of necessity, that as to the declaring of the Majority he should be the Judge upon the Place. In other Cases, in the County Courts, the Freeholders are the Judges, and he is the Minister: When we say the Freeholders are Judges, we mean the Major part of them is to judge; but when the Question is, which is the Major part, they cannot determine that Question, but of necessity the Sheriff must determine that; the nature of the thing speaks it.  
Therefore it was held rightly in Letchmere's Case, 
Hugh's Abr▪  13, 14 Car. 2. That as to the Election of Knights to Parliament, the Court is properly the Sheriff's Court, and the Writ is in the nature of a Special Common (Elegi facias.)  
I know a Judge may have many Ministerial Actions incumbent upon him, as the Chief Justice have to certify Records upon Writs of Error; therefore it is necessary for me to observe, that the Suit is here for what he does as a Judge, and not for any thing Ministerial, which appears by the Averment, that the Sheriff annexed an other Indenture, specifying to be made by the Major part of the Freeholders, and containing that the Lord Huntingtowr was chosen, Vbi revera, the Lord Huntingtowr was not chosen by the Major part of the Freeholders. If it had been said Vbi revera, the Freeholders supposed to Seal the same, never did Seal the same, there had been a falsity in the Ministerial part of sending in the Indenture: But his sending Two Indentures which were really Sealed by the Freeholders as they import, wherein the Freeholders of each Indenture (and not the Sheriff) say they are the major part, is no falsity in his Ministerial part, but only deferring to judge between them, which is the Major part, or more properly judging that they are both equal in number.  
They Object, that the matter in Question is not matter of Judgement, it is but counting the Poll, which requires Arithmetic, but not Judgement. But certainly, if it be righty considered, it will be thought that this Question of Majority is not barely a Question of Fact, but a Question of Judgement, a Question of difficult Judgement, there are so many Qualifications of Electors. First, They must have 40 s. per Annum, there the Value must be judged. Secondly, It must be Freehold, there the Title. Thirdly, It must be their Own, there colourable and fraudulent Gifts, made many times on purpose to get Voices, must be judged. Fourthly, The Electors must be Resident there, the Settlement of the Party must be determined. Fifthly, There are many things that incapacitate Voices, as Bribery, Force, etc. And many other Questions arise that are of such difficulty, that in debate of them much time is spent in Parliament, and sometimes a Committee determines one way, and the House another; Is not this a Question that refers to Judgement?  
They Object again, that the Sheriff may give an Oath concerning all the Qualifications, and he is to look no further.  
I Answer, the Statute hath given the Sheriff power to give an Oath in assistance of him, but the Statute doth not say, that whosoever takes that Oath shall have a Voice: Neither does the Stat. 23 Hen. 6. say, that the Sheriff shall not be charged with a false return that pursues that way. So that although he may use those means for his Direction, yet he must consider his own Safety, not to make a false return. If a Man upon taking such Oath give a special Answer, or it should be known to the Sheriff that he swears false, the Sheriff must determine according to his own Judgement, and not by what is sworn.  
It may be hence concluded, that the Sheriff, as to the declaring the Majority, is a Judge; And if so, my next Assertion is, That there is the same Reason he should be free from Action as any Judge in Westminster-hall, or any other Judge. Does it not import the Public that the Sheriff should deal Uprightly and Impartially? Ought he not to have Courage, and for that end should not the Laws provide him Security?  
Consider his Disadvantages; What a Noise and Crowd accompany such Elections? What Importunity? Nay, what Violence there is upon him from the contesting Parties.  
We may say, no other Judge has more need of Courage and Resolution to manage himself, and determine uprightly, than he: No other Judge determines in a Case of greater Consequence to the Public, or Difficulty than he: Expose him to such Actions, and in most Elections he must have trouble; for commonly each Party is confident of his Strength, and his Conduct, and his Friends, that let the Sheriff return never so uprightly, the Party that is rejected will revenge it by a Suit, especially if he may Sue at Common Law to have boundless Damages, without running any hazard himself, but of the loss of his Costs.  
If we Judges, that find ourselves secure from Actions, should not be tender of others that are in the same Circumstances, it may be well said, Woe unto you; for you impose heavy Burdens upon others, that will not bear the least of them yourselves.  
My second Reason is because it is alieni fori, either to examine the right of Election or behaviour of the Sheriff, both which are incident, and indeed the only Considerations that can guide in the Trial of such Causes, if they be allowed.  
It is admitted that the Parliament is the only proper Judicature to determine the right of Election, and to censure the behaviour of the Sheriff; How can the Common Law try a Cause that cannot determine of those things, without which the Cause cannot be tried?  
No Action upon the Case will lie for breach of a Trust, because the determination of the Principal thing (the Trust) does not belong to the Common Law, but to the Court of Chancery; certainly the Reason of the Case at Bar is stronger, as the Parliament ought to have more Reverence than the Court of Chancery.  
They Object, that it may be tried after the Parliament hath decided the Election, for than that which the Common Law could not try is determined, and the Parliament cannot give the Party the Costs he is put unto:  
Then I perceive they would have the determination of the Parliament binding to the Sheriff in the Action, which it cannot be, for that it is between other Parties to which the Sheriff is not called: It is against the course of Law, that any Judgement, Decree, or Proceeding betwixt other Parties, should bind the Interest of, or any way conclude a Third Person; No more ought it to do here. It may be easy for Parties combining to represent a Case so to the Parliament that the Right of Election may appear either way as the Parties please; Is is fit that the Sheriff who is not admitted to controvert such Determination should be concluded by it in an Action, brought against him to make him pay the Reckoning?  
Did the Parliament believe when they determined this Election, that they passed Sentence against the Sheriff upon which he must pay 800 l. Sure if they had imagined so, they would, nay in Justice they ought to have heard his Defence before they determine it.  
And yet that was the measure of this Case, the Sheriff was not heard in Parliament, indeed he was not blamed there, and yet upon the Trial, which concerned him so deeply, he was not allowed to defend himself, by showing any Majority or Equality of Voices, the Parliament having determined the Election.  
I do not by these Reflections tax the Law of injustice, or the Course of Parliament of inconveniency; I am an Admirer of the Methods of both, it is from the Excellency of them, I conclude this proceeding in this new-fangled Action, being absurd, unjust, and unreasonable, cannot be Legal.  
To answer the other Branch of this Objection, I say, it does not follow, that because the Parliament cannot give Costs, therefore this new devised Action must lie to help the Party to them.  
For then such an Action might lie in all Cases, where there is a Wrong to be remedied by course of Law, and no Costs are given for it.  
At the Common Law no Costs were given in any Case, and many Cases remain at this day, where the Statutes have given no Costs, as in a Prohibition, Scire facias, and Quare impedit, and divers other Cases, and yet no Action will lie to recover those Costs. And why should it lie in the Case at Bar?  
In this Case the Parliament have already had it under their Consideration in the Statute 23 Hen. 6. and have appointed what shall be paid by the Sheriff that offends, sc. 100 l. to the King and Imprisonment. The Parliament have Stated what shall be paid for Compensation, and what for Punishment, and would have provided for Costs it they had thought fit.  
My third Reason is, because a double return is a lawful Means for the Sheriff to perform his Duty in doubtful Cases.  
If this be so, than all Aggravations of falso, malitiose, & scienter, will not make the thing Actionable; for whatever a Man may do for his Safety, cannot be the Ground of an Action.  
There is sometimes Damn' absque injuria, though the thing be done on purpose to bring a loss upon another, without any design of benefit to himself: As if a New house be erected contiguous to my Ground, I may build any thing on purpose to blind the Lights of the New house, and no Action will accrue though the Malice were never so great, much less will an Action lie, where a Man acts for his own Safety.  
If a Jury will find a Special Verdict, If a Judge will advise and take time to consider, If a Bishop will delay a Patron, and impannel a Jury to Inquire of the Right of Patronage, you cannot bring an Action for these Delays, though you suppose it to be done maliciously, and on purpose to put you to Charges, though you suppose it to be done Scienter, knowing the Law to be clear; for they take but the Liberty the Law has provided for their Safety, and there can be no demonstration that they have not real Doubts, for those are within their own Breasts. It would be very Mischievous that a Man should not have leave to Doubt without so great a Peril.  
The course of Parliament makes out the ground of this Reason to be true in Fact. scil. That a double return is Lawful when the Sheriff doubts; for if the Parliament did not allow a double return in doubtful Cases they ought never to accept a double return, if it were in itself a void and unlawful return, they ought not to endure it a moment, but send for the Sheriff and compel him forthwith to make a single return; But we see that where there is ground of Doubt, the Parliament sends not for the Sheriff before they have examined the Case, and give particular Directions.  
And it must of necessity be the Course, for suppose the Voices are equal, suppose the Election is void for force, suppose the Sheriff doubts upon the validity of some Voices, shall he transmit his doubts specially to the Parliament? Was there ever any such thing done? Was there ever any other way but to make a double return, and leave it fairly to the decision of the Parliament?  
It was said by my Brother, that if the Sheriff had returned in the nature of a Special Verdict the Special Matter, and had concluded in this manner, viz, If the Parliament shall adjudge Sir Samuel Barnardiston to be chosen, than he retorns him; and if the Parliament shall adjudge the Lord Huntingtowr to be chosen, than he retorns him, that such a return as this had been safe, and could not have born an Action.  
This is a pretty Invention found out for Arguments sake, but methinks it furnishes no force at all to the part for which it is brought, but rather shows the right to be the other way; for let any Man of Reason say, whether a double return be not the same thing in Consequence, Is not a double return as if the Sheriff should say to the Parliament (the right of Election is between these two, I am in doubt which of them I shall reject, and expect your Directions.) This is the import of a double return, and is the same in effect, as if it had concluded like a Special Verdict, and so by my Brother's instance the Case should not be Actionable, though he concluded otherwise.  
That other new-fangled way could not be received; for, First, The Freeholders would never join in such a return. Secondly, Such a return is not capable of being mended by the Sheriff, But the Judgement of the Parliament must be entered upon Record to make it any return, it concluding nothing of itself, as a Verdict concludes nothing till the Judgement of the Court be entered upon the Roll with it. Thirdly, The Parliament will not, as I believe, admit of new Devises in the Course of their Proceed, whatsoever we do at Law.  
But the double return is practicable in the Country; for the Freeholders of each part will tender their Indentures. Secondly, It is easily amended in Parliament, by rejecting the Indenture of those Freeholdres that were not the Major part. Thirdly, The way has been practised in doubtful Cases for many years. So that I apprehend the Case at Bar to be more regular and favourable than the Case my Brother put, as a Case that would not bear an Action.  
Again, suppose the Sheriff had informed the Parliament of his Doubts, and that he could not readily determine where the Majority was, but it was betwixt two Persons, A. and B. and thereupon desired their favour either to grant him time to determine it, if they pleased to command him so to do, or else that they would decide it themselves, and he would obey what Directions they should make in it, and thereupon the Parliament had taken upon themselves to determine it.  
This most clearly had not been Actionable, for it was not Actionable to delay a return to any Court of Justice, where the Sheriff hath leave from the Court so to do.  
A double return, in my Understanding, speaks the same thing to the Parliament, and upon it they may either direct the Sheriff to make a single return, which is to cause him to decide it, or they may do it themselves.  
And here I must needs reflect upon the second Reason I gave against the Action, that the Matter of it is alieni fori; for I find myself, and my Brothers that argued for the Action, engaged in a Discourse of the nature of a double return, and the Course of Parliament upon it, which as a Judge I cannot so well speak to. I had the Honour to be of this House of Commons, and whilst I was there, I considered, as well as I could, the Course of Proceed of the House, and am therefore able to speak something of them, and I am brought into this Discourse necessarily by this Action; but I must say it is an improper Discourse for Judges, for they know not what is the Course of Parliament, nor the Privilege of Parliament: When the Lords in Parliament, whom they are bound to assist with their Advice, ask the Judges any thing concerning the Course or Privilege of Parliament, they have answered that they know them not, nor can advise concerning them.  
If in Parliament we do not know nor can advise concerning these things, how can we judge upon them out of Parliament? We ought to know before we judge, and therefore we cannot judge of things we cannot know.  
Our being engaged in a Discourse improper for Judges shows the Action to be improper, as much as any other Argument that can be made, and this Argument ariseth from my Brothers that argued for the Action; But now I am in this Discourse, I must go on a little further.  
My Observation of the Course of Parliament has been, that they will not permit the Sheriff to delay his return to deliberate, and he cannot take Security of either Party; and if a single return be not justified by the Committee of Elections, he is in danger of the Stat. 23 H. 6.  
It follows, that there is no way for an innocent Sheriff to be safe, where he conceives doubt, but in making a double return; and if that should be Actionable too, the Service of the Parliament were the most ungrateful Service in the World.  
It seems ridiculous to me, that it should be Objected, that this Course of Law is necessary to prevent the great Mischief arising from double Retorns, when as it be a Mischief, or disliked by the Parliament, either in general or any particular Case, they may reject them when they please, and command the Sheriff to make a single return: So that they may remedy it by their practice, without help of their Legislative Power.  
Their practice hath been hitherto to receive double Retorns, which therefore in some Cases must be Lawful; and in this very Case the double return was accepted, and the Sheriff no way punished for it, which he ought to have been if he had been .  
If double Retorns are accepted by the Parliament they are allowed, and we must say they are Lawful, which is the ground of my third Reason, for which I hold this Action not maintainable.  
My Fourth Reason is, that there is no legal Damage occasioned by the Sheriff. The Damages laid in the Declaration are, First, Being kept from Sitting in the House. Secondly, The Pains and Charges he was put unto to get into the House.  
First, That of his being kept from Sitting in the House is as much every Man's Damage in the whole County, nay, in the whole Kingdom; and any Man else might as well have an Action for it as the Member chosen.  
To sit in Parliament is a Service in the Member, for the benefit of the King and Kingdom, and not for the particular profit of the Member.  
It is a Rule in Law, that no particular Man may bring an Action for a Nuisance to the King's Highway; because all Men in England might as well have Actions, which would be infinite, and therefore such an Offence is punishable only by Indictment, except there be a special Loss occasioned by that Nuisance. For the same Reason the exclusion of a Member from the House being as much Damage to all Men in England as to himself, he, nor any Man else in England, can have an Action for it, but is punishable upon the public Score, and no otherwise. For this Reason was the Stat. 23 H. 6. wisely considered; By that Statute the Action is not given to the Party for his particular Damage, but the Action given is a popular Action, only the Party grieved hath a preference for Six months, but if he do not Sue for that time, every Man else is at Liberty to recover the same Sum.  
The other point of Damage is the Pains and Charges he was put unto, and that is not occasioned by the Sheriff, but by the deliberation of the House; Why should the Sheriff pay for that? It may be if the Parliament had sent for the Sheriff the first day, and blamed the double return, he would have ventured to determine the matter speedily, and there should have been no cause of Complaint for delay: But the Parliament saw so much Cause of doubt, that they think it not fit to put the Sheriff to determine, but resolve to examine the matter, and give him directions that may guide him in amending his return, thereupon they give day to the Parties on both sides, and finding the matter of long Examination and Difficult, they deliberate upon it.  
It seems very unreasonable the Sheriff should be made pay for this which he did not occasion, but was a course taken by the Parliament for their own Satisfaction, who found no fault in the Sheriff for putting them to all that trouble.  
Suppose Sir Samuel Barnardiston had been returned alone, and the Lord Huntingtowr had petitioned against that return, there had been the same Charge to have defended the return: So it was the contest of the opposite Party that occasioned the Charge, the deliberation of the Parliament that occasioned the Delay, but neither of them can be imputed to the Sheriff.  
I cannot difference this Case from the Case of bringing an Action against a Jury for maliciously and knowingly, and on purpose to put the Party to Charges, finding a matter Specially, whereby great Delay and great Expenses were before the Party could obtain Judgement, and yet I think no Man will affirm that an Action will lie in that Case.  
In this Case the Damages are found entire, So that if both parts, sc. the not Sitting in the House, and the Pains and Charges, are not Actionable causes of Damage, it will be intended the Jury gave for both, and so the Judgement is for that Cause erroneous.  
I suppose the Wages of Parliament will not be mentioned for Damage, for in most places they are only Imaginary, being not demanded; but if there were to be any Consideration of them, it will not alter this Case, for upon this return they are due as from the first day, and so no Damage can be pretended upon that score.  
My Fifth Reason is drawn from the Stat. 23 H. 6. which has been so often mentioned, that Statute is a great Evidence to me, that no Action lay by the Common Law against a Sheriff for a false return of a Writ of Election to the Parliament, and this Evidence is much strengthened by the Observation that hath been made, that never any Action was brought otherwise than upon that Statute.  
I must admit that if an Action lay by the Common Law, this Statute doth not take it away, for there are no negative Words in the Statute; but it is not likely that the Parliament would have made that Law, if there had been any Remedy for the Party before. The Statute observes that some Laws had been made before, for preventing false Retorns, but there was not convenient Remedy provided for the Party grieved, and therefore gives him an Action for 100 l. If the Courts of Justice had by the Common Laws Jurisdiction to examine Misdemeanours concerning the Retorns of Sheriffs to the Parliament, what needed the Parliament to be so elaborate to provide Law after Law to give them Power therein, and at last to give the Party grieved an Action, can any Man imagaine but that the Parliament took the Law to be that the Party was without Remedy; I know preambles of Acts of Parliament are not always Gospel, but it becomes us, I am sure, to have respect to them, and not to impute any falsity or failing to them, especially where constant usage speaks for them.  
It has been Objected that in these times it was reckoned a Damage to be Returned to serve in Parliament, which is the reason that no Man then did bring his Action against the Sheriff for Returning another in his stead. This cannot be true, for the Statute calls him the Party grieved, and is careful to provide convenient Remedy for him, and we see by the many Statutes about those Times, that it was a mischief very frequent, and there wanted not occasion for those Actions which doth extremely strengthen the Argument of the Non user of this pretended Common Law.  
An Action upon the Case where it may be brought, is a Plaster that fits itself for all Times, and for all Sores, and if such an Action might then have been brought, there was no need for the Parliament to provide a convenient Remedy.  
By Littleton's Rule often mentioned by my Brothers, we may conclude this Action will not lie, for if such an Action had lain it would have been brought before this Time.  
In the Case of Buckley against Rice Thomas, in Plowdens' Commentaries 118. which appears to have been elaborately Argued at Bar and Bench; if this Common Law had been thought upon, they might have prevented the Question, Whether the Sheriffs of Wales were bound by the Statute of 23 H. 6.  
It seems plain to me that the Makers of the 23 H. 6. were ignorant of this Common Law, and yet as my Brother Thurland Observes, the Judges in those Times usually assisted in the Pening of the Laws.  
The Judges and Council in the time of Buckley's Case were ignorant of this Common Law, else it would have been mentioned in the Argument of that Case.  
This Common Law was never revealed that I find, until a Time that there were divers other new lights, I mean those Times when Nevil brought an Action for a false return against Stroud during the late troubles, but in these Times it could never obtain Judgement. I have heard that the Court of Common Pleas sent the Record to the Parliament, as a Case too difficult for the Courts of Common Law to determine.  
This Statute of 23 H. 6. is not only Evidence that no such Action lay at the Common Law, but in my Opinion is not consistent with any Remedy at the Common Law, unless it be allowed that the Party shall be doubly punished.  
If the Party grieved has brought his Action upon the Statute and recovered, it was admitted by the Council that no Action can be brought at the Common Law, nor, e contra, can he recover by the Statute, after he has recovered by the Common Law, because Nemo bis punitur pro eodem delicto.  
So far it stands well, but suppose the Party grieved has let slip his Time for Three Months, and then a third Person brings a popular Action and recovers 100 l. upon the Statute, there is nothing can bar the Party grieved from his Action at the Common Law, for his sitting still will not conclude him. No Statute of Limittations extending to this Case, and if it be so, than the Party must besides his Fine and Imprisonment be doubly punished by this Statute, which was made as the Letter of it imports, because there wanted convenient Remedy.  
And now I am Discoursing of this Statute, I must observe the great Wisdom of the course of Parliament in these Cases, which hath in great measure prevented the bringing of Actions against the Sheriffs, even upon this Statute.  
Where the Sheriff mistakes the Person in his return, he incurs the Penalty of 23 H. 6. though it be without any Malice, and it may happen that where there are 21 Electors of one side and 20 of the other, and the Sheriff Retorns him that hath 21, and the Parliament by adjudging an incapacity in two of the 21 may determine that he that had the 20 voices was duly chosen. In such Case the Sheriff, has made a false return within the Penalty of the Statute 23 H. 6. and no Evidence shall be given against the Determination of the Parliament.  
This were a very hard Case for the Sheriff, and if he were liable to such Mischief, many a past Sheriff might be awakened, that takes himself to be Secure.  
But the Course of Parliament prevents this, as it is Reason; for immediately upon their Determination, they send for the Sheriff and cause him to amend his return, and thence forward the amended return is the Sheriffs return, and there is no Record that can warrant any Action to be brought for a false return. As when the Marshal of the Kings-Bench, or Warden of the Fleet have made an improvident return, omitting some Causes wherewith the Prisoner stood charged in their Custody, whereby they become liable to Action, they frequently move the Court to amend the return, and when the return is amended all is set Right, for there is no avering against a Record. In like manner when the Sheriff hath amended his return he is secure from any Action upon that occasion.  
By this means there has of late years been no Recovery upon the Statute, because all Persons chose rather to compel the Sheriff to amend his return, that they might be admitted to sit in the House, then to take their Remedy upon the Statute, and no Man can recover upon the Statute first and afterwards have the return amended, for I have been told that by the course of Parliament, unless the Petition be lodged some few Days after the return, it cannot be received afterwards, so that a Man cannot upon that Statute have Remedy at Law, and also in Parliament which seems to be wisely provided to prevent any contrariety of Determinations.  
This Statute of 23 H. 6. furnished those that argued for this occasion with one Argument which doth now vanish, they said that all the inconveniencies that could be Objected to this Action were the same upon the Statute, 23 H. 6. sc. that upon that Statute the right of Election must be examined upon a Trial where there might be contrariety of Determinations, for it appears by what I have said that there can be no contrariety of Determinations.  
And there are other Inconveniences in this Remedy by the Common Law, which are not in the Remedy given by the Statute; for by the Statute the Sum to be recovered is limited, the Informer has a time prefixed, So that there are bounds set which cannot be exceeded: But the Remedy by the Common Law is without limittation of time, which is considerable; for all Sheriffs that ever made any return otherwise then the Parliament determined, will be liable during their whole lives to them that will call them to Account for it; I say, this Case is without limittation of Time, without measure of Damages, or any Rules contained in a written Law, it depends upon a general Notion of Remedy, which may be enlarged by constructions, as it is now introduced without Precedent.  
To finish my Observations upon this Statute, I say, it is great Wisdom in the Parliament, to call the Sheriff to amend the Return, and so prevent any Remedy against him upon the Statute of 23 H. 6. For I do not see that the Rules of Law concerning Elections, are so manifestly clear and known, that it is sit that the Sheriff should, upon all Returns that are corrected by the Parliament, pay the reckoning of the contest.  
I have a Sixth Reason against this Action, which is, because the Sheriff is not admitted to take security to save him harmless in such Cases; I take this reason to be instar omnium, and there needs no other in the Case.  
It were the most unreasonable and grievous thing in the World, that the Sheriff should be bound to act without any deliberation, and not be allowed to take any security, and yet be liable to an Action; which way soever he take there is no course can avoid it, but this of a double Return, as I have before shown.  
It has not been said by any that argued the other way, that the Sheriff may take security, and I suppose will not be said, for that will be a dangerous course for Parliaments; for then the most litigious man must be returned, and not he which is truly chosen.  
If the Sheriff may not take security, the Law must be his security. It was an Argument used by my Brother—, that because the Law imposes an Officer, viz. the Sheriff, therefore the Law must give the party an Action against that Officer, if he misdemean himself: the Argument does not hold universally, for the Law imposes a Judge, and yet no Action lies against him: but the reason of that Argument, if turned the other way, is irrefragable; as thus, the Law will not suffer the Sheriff to take security, therefore the Law must be his security, else it were a most unreasonable Law. This reason of itself is sufficient to bear the whole Case; for no Case can be put in our Law, nay, no Case can be in any reasonable Law, where a man is compellable to judge without deliberation, and cannot take security, and yet shall be liable to an Action.  
I have two reasons to add, upon which I lay great weight, though they depend not upon any particular circumstances of this Case, but the general consideration of it; they are these, 

1. This is a New Invention.  
2. That it relates to the Parliament.    
As it is a new Invention, it ought to be examined very strictly, and have no allowance of favour, and then it will have the same fortune that many other Novelties heretofore attempted in our Law have had.  
Actions upon the Case have sometimes been received in new Cases, where it stands with the Rules of Law, and no inconveniency appears, but they have been more often rejected. I shall instance some Cases that have been rejected, because it will be manifest by them, that all the Arguments and Positions laid down by my Brothers, that would support the Action, are as well applicable to several Cases, that have been already rejected, as to the Case at Bar.  
An Action upon the Case was brought against a Grand Juryman, for falsely and maliciously conspiring to Indict another, and adjudged it would not lie. An Action was brought against a Witness, for testifying falsely and maliciously, but adjudged that no Action would lie in those Cases.  
These three Instances are applicable to every Argument urged for this Action, the Arguments my Brothers made in depressing Falsity and Malice, those which they made from the comparison of other Actions upon the Case, à minore ad majus, the Argument, that because the Law imposes the Officer, it will punish Malice; these Arguments have the same force in the case of a Judge, Juror, or Witness, and yet my Brothers admit in those Cases an Action will not lie, which shows the invalidity of those Arguments.  
Now I shall give other Instances, where Actions upon the Case have been rejected for Novelty and Reasons of Inconveniency.  
An Action of the Case was brought against the Lord of a Manor, for not admitting a Copyholder, and it was adjudged it would not lie, Cro. Jac. 368.  
There was Verdict given, and Damages found, by the Jury in that Case, the Lord is compellable in Chancery to admit a Copyholder; and what harm would it have been, if there might have been remedy given by the Common Law, there being a Custom broken, by which the Lord was bound? The Reasons of the Book are, because it was a Novelty, and it would be vexatious, if every Copyholder should have an Action against the Lord, when he refused to admit him upon his own terms.  
It hath been adjudged, that an Action upon the Case will not lie for the breach of a Trust, because the Common Law cannot try what a Trust is; but if such Actions were allowed, the Law might declare that to be a Trust which the Court of Chancery, that properly judges of Trusts, might say is none; and where the Common Law cannot examine the principal Matter, the Damages that are but dependant upon it shall not be regarded.  
Anthony Maddison brought an Action against Skipwith, for maliciously killing Sir Thomas Wortley. The Case was thus: The Plaintiff was a young Lawyer, that had expended all his Gains in the Purchase of a Rent, that was determinable upon the death of Sir Thomas Wortley; Skipwith quarrelled with Sir Thomas in the Streets, about a Mistress, and killed him, whereby Maddison lost his Rent. It was held the Action would not lie, though it were laid to be done maliciously, and on purpose to determine the Paintiff's Rent.  
I observed in that Case, that although Mr. Maddison knew very well there was a Mistress in the case, and that his Rent was not aimed at, yet he would fain try his fortune in the Suit, thinking that perhaps a Jury, out of compassion to him, or to discourage the like Facts, might make the Manslayer pay him for his loss. But the Judges would not suffer it to go on, it being a mere device and new-fangled Action.  
It hath been held, that an Action will not lie against a person for suing for Tithes in kind, knowing that there was a Modus, because it might then be perilous for any person to insist upon his right.  
It was held by the Court of Common-Pleas, that no Action will lie for suing an Attorney knowingly in another Court against his Privilege, for his means to enjoy his Privilege, is by Writ of Privilege, and he is not bound to claim his Privilege, nor can his adversary know he will claim it.  
An Action was lately brought in the Kings-Bench, (as I heard) for delaying a Post-Letter maliciously, whereby the Plaintiff wanted Intelligence, that might have been of great advantage to him. The Court discountenanced the Action, so that it proceeded no further. It was then said (as I heard) to this effect: That if such Precedents were admitted, there could hardly be any dealing or correspondence, but might be matter for Actions at Law; and although the Case depended upon proof of particular malice, and the Defendant will be acquitted, if his case be not odious, yet we must consider, that there is both charge and vexation of mind that attends the defence of a just Cause, and we must not subject men for all their actions to such trouble and hazard.  
These Instances show, that although an Action upon the Case be esteemed a Catholicon, yet when Actions have been applied to new Cases, they have been always strictly examined, and upon considerations of Justice or conveniency they have been many times rejected.  
For though the Law advances Remedies, as my Brothers observed, yet it is with consideration, that Vexation be not more advanced than Remedy.  
It is my opinion, that no new Device ever was or can be introduced into the Law, but absurdities and difficulties arise upon it, which were not foreseen, which makes me very jealous of admitting Novelties.  
But in matters relating to the Parliament, which is my second ground, there is no need of introducing Novelties, for the Parliament can provide new Laws, to answer any Mischiefs that arise, and it ought to be left to them to do it.  
Especially in a Case of this nature, concerning Elections, which the Parliament have already taken care of, and prescribed Remedies by the several Statutes that have been made concerning them, I say, in such a Case there is little need to strain the Law.  
The Judges in all times have been very tender of meddling with matters relating to the Parliament. I do not find, that ever they tried Elections, but where Statutes give them express power, or that they ever examined the behaviour of a Sheriff, or any Officer of the Parliament, in relation to any service performed to the Parliament, but upon the Statutes, and in Brouncker's Case, Dyer 168. The Statute was their Rule in the Star-Chamber, and they inflicted the same Punishment that is appointed by the Statute.  
If we shall allow general Remedies (as an Action upon the Case is) to be applied to Cases relating to the Parliament, we shall at last invade Privilege of Parliament, and that great Privilege of Judging of their own Privileges.  
Suppose an Action should be brought in time of Prorogation, against a Member of Parliament, for that he falsely and maliciously did exhibit a Complaint of Breach of Privilege to the Parliament, whereby the party was sent for in custody, and lost his liberty, and was put to great charges to acquit himself, and was acquitted by Parliament.  
If upon such a Case the Jury should find the Defendant guilty, why should not that Action be maintained as well as this at Bar? It may be said for that Action, that the Judgement of the Parliament is followed, and the Privilege is not tried at Law, but determined first in the House. 2. It may be said, that the party hath no other way to recover his Charges.  
It would be dangerous to admit such an Action, for then there would be peril in claiming Privilege, if the party complained of, had the fortune to be acquitted by the House; the Member that made the complaint, will be at the mercy of the Jury, as to the point of Malice, and quantity of Damages. Such a Precedent, I suppose, would not please the Parliament, and yet it may with more justice be the second Case, than this Case at Bar the first.  
Actions may be brought for giving Parliament-Protections wrongfully. Actions may be brought against the Clerk of the Parliament, Sergeant at Arms, and Speaker, for aught I know, for executing their Offices amiss, with Averments of Malice and Damage, and then must Judges and Juries determine what they ought to do by their Offices, and in effect give Rules to them.  
It cannot be seen whither we shall be drawn, if we meddle with Matters of Parliament in Actions at Law, therefore, in my judgement, the only safety is in those bounds that are warranted by Acts of Parliament or constant Practice.  
Suppose this Action had been brought before the Election decided in the House, and the Jury had found one way, and the Parliament had determined contrary, how inconsistent has this been?  
But it was said in the Kings-Bench, that the Court would not try it before the Parliament had determined the Election, and then that cannot be contested, but the Judgement of the Parliament must be followed; and my Brother— but now said, Sure no Man will be so indiscreet, as to bring such an Action before the Parliament have determined it, and the Court will not try it, before such time as the Election be decided in a proper way.  
In my opinion this was not rightly considered, for how can the Court stay any Suit, to expect the Determination of the Parliament? And what reason or justice is there, that the Sheriff, who is no party called to answer in the Parliament, should be concluded in any thing, by a Judgement between other parties, to defend himself from a demand of Damages, in a Course of Law, where Witnesses are examined upon Oath, which they cannot be in the Commons House? There is no reason the Suit at Law should stay till the House have determined, if the determination of the House be not conclusive in that Suit.  
And for the discretion of the persons that are like to bring such Actions, I cannot depend upon it, for I see in this Age, some Men will insist upon their Private Rights, to the hindrance of Public Affairs, of higher consequence than any that can come before the Courts in Westminster-hall.  
It may be there will not want men that will press us to judge in such cases, not only before the Parliament have determined, but against what the Parliament have determined, and will tell us, that the Sheriff was no party, that Witnesses were not there examined upon Oath, and produce Arguments from Antiquity, which we shall be very loath to judge of.  
I can see no other way to avoid consequences derogatory to the Honour of Parliament, but to reject the Action, and all others that shall relate either to the Proceed or Privilege of Parliament, as our Predecessors have done.  
For if we shall admit general Remedies, in Matters relating to the Parliament, we must set bounds how far they shall go, which is a dangerous province; for if we err, Privilege of Parliament will be invaded, which we ought not any way to endamage. This I speak for general Remedies: Now I will consider this particular Case, which, in my opinion, would bring danger and dishonour to the Parliament.  
It is dishonourable to the Parliament, that there should be no protection in their Service; I have shown, that the Sheriff can be safe in no case, if he shall be sued in such a case as this; and can there be a greater reproach, than that there is no safety in their Service? no body can serve them cheerfully or willingly, at that rate.  
It has been objected, that the Sheriff is not their Officer, but is the Officer of the Court of Chancery, which sends forth the Writs, and receives the Returns. The Argument is plausible, but will not pass in the Parliament, for there they say the Court of Chancery is the Repository of their Writs, and will not allow them to issue without Warrant from the House, they will not suffer the Court of Chancery to meddle with the Returns, or the Sheriff; the Parliament sends immediate Orders to the Sheriff, if the Return be too slow; they direct the Sheriff to amend his Return; they punish the Sheriff, where they find him faulty: so that it appear they exercise an immediate Jurisdiction over the Sheriff, and I suppose they would judge it very false Doctrine to say, that the Court of Chancery can any way meddle with the Returns, or the Officer.  
Admitting the Sheriff to act in Returns, as the Officer of the Parliament, it concerns them, that he should be liable to no other punishment, but what they inflict; otherwise they cannot expect to be obeyed.  
To have others Judge when their Servants do well, will be to have others give Rules to their Servants and Service, which they will think inconvenient.  
Let it be considered, how hard a Task Sheriffs have in Elections of Knights to the Parliament; the Appearance is commonly very numerous; the Parties contesting very violent; the Proceed tumultuous; the Polling is sometimes in several Places at once: so that the Sheriff can hardly be a Witness of the action; and if a dispute be in the House of Commons, he is no party to it. If after all this, the Sheriff, who cannot indemnify himself by security, shall be liable to an Action, the Service of the Parliament may be reckoned a miserable slavery, which is not for their honour.  
As this is dishonourable, so it is dangerous to Parliaments. It concerns the Kingdom, that Returns to Parliament should be upright and impartial; that they may be so, the Sheriffs should be secure from all fears.  
Judges are not liable to Actions, that they may proceed uprightly and impartially; if they were subject to Suits for their judgements, there is that earnestness and confidence on both sides, that one side would be dissatisfied and trouble them, and they could not discharge their duty without apprehensions of disquiet.  
If the Sheriffs be exposed to Actions thus, let us consider what and whom he is to fear; he may fear the Suit of the Party, and he may fear the Suit of the King, and it follows necessarily, that if an Action lies, an Information for the King will also lie, for the misdemeanour in his Office. If it be not a Case privileged by the Complexion of it as Parliamentary, from being examined in Westminster-hall, but that he may be punished at the Suit of the Party, he may certainly be as well punished at the King's Suit; if so, where is the Sheriff's security? will his own innocency secure him? that must be tried by a Jury of the Country where the Parliament sits, who are (it may be) strangers to him as well as to the matter, or by a Jury of the Country where the Election was, where (it may be) they will be of an opposite party, the Plaintiff may wait his opportunity, and question him twenty Years after; if he be condemned, his punishment is unlimited; a Fine may be set to any height for the King; the Damages may be given to any value for the party: where is his security upon such proceed, will he not be (more afraid of such punishment out of Parliament, than of any punishment in Parliament? will not, or may not his terror make them desire to please them that can punish them out of Parliament, rather than do right? will not that be dangerous to the Constitution of Parliaments.  
As the punishment out of the Parliament may be a terror to those which mean well, so colourable punishments may be as mischievous on the other side, for they may prevent any punishment in Parliament; for, Nemo bis punitur pro eodem delicto, they may serve for protection of men that do ill: when it is seriously weighed of what Consequence this may be, the Case at Bar will not be thought a Case fit to be received by the Judges, without the countenance of a new Law.  
They object, here is Malice found by the Verdict, and there can be no danger or inconveniency that Malice should be punished.  
This Objection fortifies my Opinion, for Malice, upon which they would have the Scales turned, in this Case is not a thing demonstrative, but interpretative, and lies in opinion; so that it may give a handle to any man to punish another by.  
The instance of this very Case shows, that a good man may reasonably be afraid of the event of his defence in such a Case.  
For although the matter was of great examination in Parliament, and at last decided but by few Voices, and no observation of the Sheriff's miscarriage there, though it appeared upon the Trial, (which I may say, being present) that the Sheriff was guided by the advice of his Friends of Council and of Parliament-men, that told him, the only safe course was, to make a double Return, yet the Jury condemned him to pay 800 l. against the expectation of the Court, for the Judges, that were present at the Trial, did all declare publicly, that they would not have given that Verdict.  
The Judges heard all the Evidence the jury could go upon, for being of a remote County to the place of Election, the Jury could know nothing of their own knowledge, and yet the Judges concurred not with the Jury in opinion.  
I know we are not to examine the truth of the Verdict, we must take it for Gospel, neither does any partiality in this particular lead me in judgement, but I show it as an instance, that Malice is not demonstrative; men's minds may be mistaken: and innocent men have therefore reason to be afraid, especially in ill times, and may use such means for their safety, as may not be convenient for Parliaments.  
But there can be no danger or inconveniency in the Censure of the Parliament, that represents the whole Kingdom, who hitherto have alone exercised this Power, and who may at any time reform the Law, if the present practice be any way inconvenient.  
Upon the Reasons which I have produced, I ground my Opinion. Now it will be necessary to weigh what has been said in opposition to it.  
The Arguments urged on the other part, related either to the Ingredients or Circumstances of the Action, or to the Foundation and Substance of it.  
I call the Ingredients and Circumstances of the Action, that it is laid with the words, falso malitiose deceptive & scienter, and that here is a Verdict in this Case, and Damages are found.  
The words, falso malitiose & deceptive, will sometimes make a thing actionable, which is not so in itself, without Malice proved, though there be the same damage to the party.  
As where a man causeth another to be falsely indicted, yet if it be not maliciously, no Action lies, though there be the same trouble, charge and damage, in one Case, as in the other.  
But it is only where a man is a voluntary Agent, for if a man be compellable to act, you cannot molest him upon any Averment of Malice, as if a Grand Juryman causeth another to be indicted; though you aver Malice, you cannot have an Action against him: so for a Witness that doth testify, or a Judge that judgeth.  
In the Case at Bar, the Sheriff is compellable to act, and not barely, as a Minister, to send the Indenture, but, as a Judge, to say which is the major part of the due Electors, and if he mistakes, there is no reason it should subject him to an Action upon an artificial Averment of Malice.  
I remember, in Shepherd and Wakeman's Case, in the Kings-Bench, Mr. Justice Wyndham said well, that the words, falso & malitiose, were grown words of course, and put into every Action, and that, to his knowledge, Juries had many times not regarded them, that he looked upon them as words of form.  
If we should make the words, falso & malitiose, support an Action, without a fit Subject-matter, all the actions of Mankind would be liable to Suit and Vexation; they that have the Cooking (as we call it) of Declarations in Actions of the Case, if they be skilful in their Art, will be sure to put in the words, falso & malitiose, let the Case be what it will, they are like Pepper and Vinegar in a Cook's hand, that help to make Sauce for any Meat, but will not make a Dish of themselves.  
Falso & malitiose will not enable an Action against a Judge, nor against a Indictor, or Witness, nor where words are not actionable, though the Plaintiff have a Verdict and Damages found, nor for a breach of a Trust, which is alieni fori.  
The reason of every one of these Cases holds in the Case at Bar, and therefore it ought to have the same Resolution.  
As to the word scienter, it hath weight sometimes, as if an Action be brought for keeping a Dog that worried fewer Sheep, Sciens Canem ad mordendum oves esse consuetum; or for detaining the Servant or Wife of another, scienter. In these Cases, if the Defendant have been told, that the Dog did worry Sheep, or that it was the Servant or Wife of another, though it may be he did not believe it, yet it was scienter, for the word implies no more, than having notice. And in those Actions he must inform himself at his peril, and may, if he doubts, avoid danger, by putting away those things which give offence.  
But in this Case he could receive Information by none, and is not to believe or disbelieve any body, but is bound to judge of the thing himself, and to act according to his judgement. So that no proof could be made of the scienter, for one side tells him the Election is one way, the other side tells him it is the other way, but he being present to the whole Action, must follow the dictates of his own judgement. Hence it appears, scienter in this Case is an empty word, not referring to Notice of a Fact, but to Matter of Judgement, which cannot any way be proved.  
It has been often urged, that this Case is stronger being after a Verdict, and Damages found by the Jury, and it has been said that perhaps upon Demurrer, it might have been more doubtful.  
The Case is the same to me upon a Verdict, that it would have been upon a general Demurrer, and no stronger, for a Demurrer is the Confession of the Party, of all that can be proved, or can possibly be found upon that Declaration.  
It is my Lord Cooke's advice, in Cromwell's Case, 4 Part 14. a. never to Demur to a Declaration, if there be any hopes of the Matter of Fact, for the Matter in Law will as well serve after Verdict, as upon Demurrer.  
It had been a very odious Case, if the Sheriff should have admitted all this Fact to be true by a Demurrer.  
The finding the Plaintiffs Damages adds no strength to the Case, for we see every day upon Actions for Words, though the Jury find the Defendant guilty of speaking words falso & malitiose, and find it to be to the Plaintiffs great damages, yet if the words are not such as will bear an Action, the Court stays Judgement, and if Judgement happen to be given, it is reversable for Error, which shows, that the finding of Damages by the Jury, cannot make an Action better, than if it were to be adjudged upon Demurrer.  
I shall now consider what has been said to maintain this Action upon the main substance and foundation of it. They say, this is a Case within the general reason of the Common Law, for here is Malice, Falsity, and Damage, and where they concur, there ought to be remedy, and although this be a new Case, yet it ought not to be rejected, for other kind of Actions have been newly introduced, and this is as sit to be entertained as any.  
My Brothers, that argued even now for the Action, shown great Learning and great Pains, and certainly have said all that can be invented in support of this Case, but as far as I could perceive, they have spoken only upon general Notions to that purpose I just now mentioned, but nothing that I could observe applicable to the reasons and differences I go upon.  
As for the Rule they go upon, that where Malice, Falsity and Damage do concur, there must be remedy; I confess it is true generally, but not universally; for it holds not in the Case of a Judge, nor an Indicator, nor a Witness, nor of words that import not legal slanders, through they are found to bring damage, as I have shown before; and the reasons that exempt these Cases from the general Rule, have the same force in the Case at Bar.  
I must confess, the Judges have sometimes entertained new kinds of Actions, but it was upon great deliberation and with discretion, where a general inconvenience required it.  
If Slade's Case were new, (for my Brother Th● land observes truly; it was said in that Case, that there were infinite number Precedents) that Case imported the common course of Justice; Actions for words, that are said to be new, though they have been used some hundreds of Years, are a necessary means to preserve the Peace of the Kingdom. The Case of Smith and Crasshaw, Cro. Car. 15. was a Case of general concern, being, that Prosecutions for Treason may be against any man, and at any time.  
But in the case at Bar, neither the Peace of the Kingdom, nor the Course of Justice is concerned in general, but only the Administration of Officers of the Parliament in the Execution of Parliamentary Writs, and can never happen but in time of Parliament, and must of necessity fall under notice of the Parliament: so that if the Law were deficient, it is presumed the Parliament would take care to supply it; discretion requires us rather to attend that, than to introduce new Precedents upon such general Notions that cannot govern the course of Parliaments.  
My Brother— said the Common Law complied with the Genius of the Nation. I do not understand the Argument; Does the Common Law— Are we to judge of the changes of the Genius of the Nation? whether may general Notions carry us at that rate? for my part, I think, though the Common Law be not written, yet it is certain, and not arbitrary; we are sworn to observe the Laws as they are, and I see not how we change them by our Judgements, and as for the Genius of the Nation, it will be best considered by the Parliament who have Power of the Laws.  
In the Case at Bar, I look upon the Sheriff as a particular Officer of the Parliaments, for the managing Elections, and if he were not Sheriff, I look upon the Writ as if it were an Order of Parliament, and had not the Name of a Writ: I look upon the Course of Parliament, which we pretend not to know, to be incident to the Consideration of it; so that it stands not upon the general Notion of Remedy in the common course of Justice.  
The Arguments of the Falling of the Value of Money, whereby the Penalty of 100 l. provided by the 23 H. 6. is become inconsiderable, and the increase of the estimation of being a Member of Parliament, if they were true, are Arguments to the Parliament to change the Law by increasing the Penalty, but we cannot do it.  
My Brother—, in his Argument at the Bar, would embolden us, telling us we are not to think the Case too hard for us, because of the Name or Course of Parliament, for Judges have punished Absentees; they may determine what is a Parliament; what is an Act of Parliament; how long an Ordinance of Parliament shall continue, and may punish Trespasses done in the very Parliament.  
I will not dispute the truth of what hath been said in this, but if his Arguments were artificial, he might have spared them, for they have no manner of effect, to draw me beyond my sphere.  
I will not be afraid to determine any thing that I think proper for me to judge, but seeing I cannot find the Courts of Justice have at any time meddled with Cases of this nature, but upon power expressly given them by Acts of Parliament, I cannot consent to this Precedent, I am confident when there is need the Parliament will discern it, and make Laws to enlarge our Power, so far as they shall think convenient.  
I see no harm, that Sheriffs in the mean time should be safe from this new devised Action, which they call the Common Law, if they misdemean themselves they are answerable to the Parliament, whose Officers they be, or may be punished by the Statutes made for the regulating Elections.  
It is time for me to conclude, which I shall do by repeating the Opinion I at first delivered, viz. That this Judgement is not warranted by the Rules of Law, that it introduceth Novelty of dangerous consequence, and therefore aught to be reversed.  Saepe Viatorem nova non vetus orbita fallit.  
FINIS.