case Muriel against tracy jenkins chamberlain and CORNWAILL follow water v  green Ch if a declaration for a malicious prosecution charge three person one  of who be the justice of the peace with a conspiracy illegal to arrest and  imprison the plaintiff the conspiracy may be collect by the jury from the  circumstance of the case but if it appear that the justice of the peace be  persuade by the other that it be not a bailable offence and that from  ignorance of the law and not from the malice of his heart he commit the  plaintiff he shall be acquit S c ante S c post S c salk S c holt a action upon  the case in the nature of a conspiracy wherein the plaintiff declare that the  defendant per concord in feeling inter eos habitant to vex and oppress he do  pretense cujusdam warranti from sir Simon Lovel recorder of London wherein the  plaintiff be charge by the oath of one Ashby to have assault the say Ashby on  the highway with intent to rob and murder he arrest he the plaintiff and carry  he before chamberlain a justice of peace who ex persuasione of Tracy refuse to  bail he though good bail be tender and so chamberlain commit he to the prison  of the Gatehouse where such and such sum of money be extort from he but it be  not say in the whole declaration that it be without probable cause upon  evidence before holt chief justice it appear that eight year ago Muriel be a  gentleman servant and ride one day abroad have fall out with Ashby on the road  and be in drink be sound beat by he notwithstanding which Ashby take out  immediate a justice warrant against Muriel for a assault and battery but  nothing more be do upon it six modern er p year afterward some difference  arise between Muriel Tracy and Jenkins here in London Jenkins go down to  Suffolk and at the persuasion of Cornwaill prevail with Ashby to come up to  London to make the oath above mention against Muriel which he do before the  recorder whereupon the warrant be grant and have a guinea from Jenkins for his  pain a twelvemonth after Tracy be himself a justice of peace employ the  underkeeper of the Gatehouse and other to take up Muriel and to carry he  before justice chamberlain and send he word as soon as they take he which  accord be do and Tracy inform chamberlain that he have advice with the  recorder and other lawyer about the offence charge upon Muriel and that they  be of opinion it be not bailable whereas in truth be never do ask the question  whereupon chamberlain refuse bail and commit he Tracy follow he to gaol and  direct the gaoler to use he severe and to iron he holt chief justice as to  chamberlain he be to blame for his ignorance but there be no reason to find he  guilty upon this evidenceFor case in which the court have refuse to grant  information against justice of the peace for ignorance vide king v young burr  king v Cox burr king v palmer burr king v Jackson term Rep king v holland term  Rep but if a party be injure by their mistake or ignorance of the law a action  lie hawk p c ch S green v Bucclechurch Leon they can however be punish both  criminal and civil for the same offence king v Fielding burr a but for the  rest the circumstance of the evidence show it to be all one chain of malice  and if the declaration be good the evidence will maintain it modern but the  exception take to the declaration be first that it recite a warrant variant  from that on which the plaintiff be arrest for the recital be absolute and  positive that the oath be that the plaintiff have assault Ashby with intent to  rob and kill he but the warrant be with intent to rob and kill he as he  believe No great heed be bad to that objection but holt chief justice say it  shall be save to they second that the declaration suppose the arrest to be  without a legal warrant for it be that pretense cujusdam warranti and pretense  be the same as multicolored and that must be take as if no warrant have be but  that be overrule for there be a ill use make of this warrant though it be  legal sure that be pretense of a warrant three if it be take to be a legal  warrant there can be no conspiracy in take up one by a legal warrant especial  it not be lie that the warrant be take out without probable cause holt chief  justice upon this exception will they to withdraw a juror for he hold the  declaration ill for not allege it to have be without probable cause and to  this the party consent note here by holt chief justice this be a action on the  case in nature of a conspiracy all may be acquit to one and he find guilty