Ashby versus white all mich Ann see SC ld raym with note Mod Cas salk salk in  action upon the case against the constable of ailesbury the plaintiff declare  that such a day the late king writ issue and be deliver to the sheriff of b  for election of member of parliament in his county whereupon the say sheriff  make out his precept or warrant to the defendant be constable of a to choose  two burgess for that borough which precept be deliver to the say constable and  that in pursuance thereof the burgess be duly assemble c and the plaintiff be  then duly qualify to vote for the election of two burgess offer to give his  voice for sir t l and S m Esq to be burgess of Parlianent for the say borough  but the defendant know the premise with malice c obstruct he flom vote and  refuse and will not receive his vote nor allow it and that two burgess be  choose without allow or receive his voice a verdict be find for the plaintiff  and upon motion in arrest of judgement three judge hold that this action will  not lie till the parliament have decide whether the plaintiff have a right to  vote as a elector holt c j the case be true state and the only question be  whether or not if a burgess of a borough that have a undoubted right to give  his vote for the CbUSing a burgess of parliament for that borough be refuse  give his vote have any remedy in the king court for this wrong against the  wrongdoer all my brother agree that he have no remedy but I differ from they  for I think the action well maintainable that the plaintiff have a right to  vote and that in consequence thereof the law give he a remedy if he be  obstruct and this action be the proper remedy by the commonlaw of England  every commoner bath a right not be subject to law make without their consent  and because it can be give by every individual man in person by reason of  number and confusion therefore that power be lodge in their representative  elect by they for that purpose who be either knight citizen or burgess and the  grievance here be that the party not be allow his vote be holt KB er p not  represent the election of knight of shire be by holt KB freeholder and a  freeholder have a right to vote by reason of his freehold and it be a real  right and the value of his freehold be not material till the statute of h  which require it shall be S ayear for before that every freeholder though of  never so small a value have a right to vote at these election in borough some  of which be by prescription they have a right of vote ration burgagii and  ration tenurw and this like the case of a freeholder before mention be a real  right annex to the tenure in burgage and in city and corporation it be a  personal inheritance and vest in the whole corporation but to be use and  exercise by the particular member and such a privilege can be grant but to a  corporation this be a noble franchise and right which entitle the subject in a  share of the government and legislature and here the plaintiff have this right  it be apparent that the officer do exclude he from the enjoyment of it wherein  none will say he have do well but wrong to the plaintiff and it be not at all  material whether the candidate that he will hay vote for be choose or likely  to be for the plaintiff right be the same and be hinder of that he have injury  do he for which he ought to have remedy it be a vain thing to imagine there  shall be right without a remedy for want of right and want of remedy be  convertibles if a statute give a right the commonlaw will give remedy to  maintain it and wherever there be injury it import a damage and there can be  no petition in this case to the parliament nor can they judge of this injury  or give damage to the plaintiff although this matter relate to the parliament  yet it be a injury precedaneous to the parliament and where parliamentary  matter come before we as incident to a cause of action concern the property of  the subject which we in duty must determine though the incident matter be  parliamentary we must not be deter but be bind by our oath to determine it the  law consist not in particular instance but in the reason that rule they and if  where a man be injure in one sort of right he have a good action why shall he  not have it in another and thouuh the house of Commons have right to decide  election yet they can judge of the charter original but secondary in the  determination of the election and therefore where a election do not come in  debate as it do not in this case they have nothing to do and we be to exert  and vindicate the holt KB queen jurisdiction and not to be fright because it  may come in question in parliament and I know nothing to hinder we from judge  of matter depend on charter or prescription he conclude for the plaintiff here  judgement be give for the defendant contrary to the opinion of the chief  justice on a writ of error afterward bring in the house of lord the judgement  be reverse by a great majority of the lord who concur with holt c j