majority">H-jsmer, Ch. J.

Under the charge given to the jury, they must have found, that at the time of the arrest, the plaintiff was in the exercise of his franchise as an elector, and that he did not waive his privilege of protection. From the facts stated in the motion my mind would be led to the same result. Retiring to a house in the neighbourhood, while the proper officers were counting the votes, the defendant, on a fair construction of the constitution, was attending on the business of the election ; and mere silence, on his part, was no waiver of his privilege. Cameron v. Lightfoot, 2 Bla. Rep. 1190.

*543The jury were instructed, that if the plaintiff was in the exercise of his franchise, when arrested, and did not waive his protection, the action of trespass was sustainable ; but to this I cannot accede. I consider the elective franchise as a noble privilege ; and view it not merely as a public, but likewise as a personal benefit; and the privation of it, maliciously, as vin-dicable by an action on the case. King v. Coil, 4 Day 129. Ashby v. White, 2 Ld. Raym. 938. Sterling v. Turner, 2 Lev. 50. S. C. 1 Ventr. 206. Drewe v. Coulton, 1 East 563. n. Jenkins & al. v. Waldron, 11 Johns. Rep. 114. But the arrest, made in pursuance of a legal judgment and execution, was valid ; and the injury, if any, resulted from the malice, which prompted the proceeding. The officer acted by lawful and regular process, commanding the arrest in question ; and if he was not under the influence of abad motive, he is not responsible for his conduct to the plaintiff. The quo animo must be the gist of any action sustainable against the defendant ; and this enquiry is inadmissible to fix on him a trespass. 1 Chitt. Plead. 136. When the process of a court has been abused, trespass is the proper action, if the conduct of the officer was, in the first instance, illegal, and produced an immediate injury to the body ; as if the sheriff arrest out of his county ; or after the return day of the writ; or break open an outer door ; or, by any act of his, after the arrest, become a trespasser ab initio. 1 Chitt. Plead. 185, 6. But no such abuse of process exists, in this case ; and the only ground of complaint, is, a violation of the plaintiff’s privilege, for which no action of trespass has ever been sustained. 1 Chitt. Plead. 184. Luddington v. Peck, 2 Conn. Rep. 700. Tarlton v. Fisher, Doug. 671. Cameron v. Lightfoot, 2 Bla. Rep. 1190.

It was the duty of the officer, in compliance with the execution, to make the arrest, unless he had knowledge that the plaintiff was under the protection of his privilege. The arrest, per se, was not only valid, but in every view proper, admitting only the above exception ; and, in many cases, to make enquiry into the various facts, which confer on an individual the privilege of protection, and to decide them at his peril, would place an officer in a situation of extreme difficulty. He cannot administer an oath, nor compel the attendance or testimony of witnesses; and is without the means of coming to a satisfactory result. It ought always to devolve on the person arrested, with whom is the knowledge of the *544facts, to prove that he was under protection, and that this was known to the officer arresting him; and todo this, he must bring his action on the case, which is precisely adapted to , such an enquiry.

The other judges were of the same opinion.

New trial to be granted.

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