case Ashby against white a person who have a right to vote for the election of  member to serve in parliament may maintain a action against the sheriff or  other officer who take the poll for refuse to admit his vote although the  fight of such elector to vote be never determine in parliament and although  the candidate for who he tender his vote be return duly elect by the officer  who refuse the vote S c salk S c salk S c saint Tr S c holt S c brown p c S c  ray Ent S c ld ray in a action on the case the plaintiff declare that on such  a day in December in the twelve year of the late king there issue a writ to  the sheriff of buck for the election of member of parliament in his county  that the say writ be deliver to the say sheriff whereupon the sheriff make his  warrant to the constable of ailesbury to choose two burgess for that borough  which warrant be deliver to the say constable that in pursuance thereof the  burgess be duly assemble to choose c that the plaintiff be then duly qualify  to give his voice for the election of two burgess before the say white he be  ready to give his voice for lee and main to be burgess of parliament for the  say borough and that the defendant know the premise with malice c do obstruct  he from give his voice and do refuse it and not allow or receive it and that  two burgess be choose without allow or receive his voice verdict for the  plaintiff and now the court argue seriatim three judge against the plaintiff  and holt chief justice all spit for he modern gold puisne justice against  plaintiff for four reason first the constable in this case be to judge who  shall vote or not and as such be not liable to action a sheriff shall not be  liable to a action for take insufficient bail because he be judge of their  sufficiency Metcalf v Hodgson Hutton a a action for take bail have nothing in  the county do not lie in the king bench car roll b in a action of escape upon  process the defendant plead that he let he go upon sufficient bail and it be  hold that the sufficiency of the bail be not traversable in the case of  Hammond v Howell Mod d the jury be fine for a verdict against evidence and  hold ill and in the yearbook it be hold that yearbook Henry pl e a judge be  not liable to a action for make up a false record second this be a  parliamentary offence with which we have nothing to do byway of action for we  can examine whether the party refuse have a right to vote or not for that  proper belong to the house of Commons to determine and suppose the question be  whether the right of vote be in a select number or in the populace and the  defendant refuse the plaintiff for be of the populace and we judge he to have  the right of vote be of the populace and upon that ground give judgement for  the plaintiff and after the right of election in that borough come in question  in parliament and there the right be adjudge to be in a select number this  will occasion a concurrency of independent jurisdiction which will be  wonderful inconvenient in the case of Dawson v sheriff of London vent f it be  hold that even for a false return a action do not lie for there be no  precedent of alley before the statute of Henry c three here be no profit  present or possibility of a future profit so it be all in an unjust manner  without financial loss and damnum without in an unjust manner or vice line  will not bear a action for both must necessary concur to maintain the action  for thing must not only be do amiss but it must redound to the prejudice of he  that will bring his action modern er p for it yearbook Henry c a if a man  forge a bind in my name it be possible I may be damnified by it but until it  be put in suit against I I can bring action against the Forge yearbook Edward  pl Henry pl cite in the case of wateris v freeman hob see also full v young  Bulst b fourthly this relate to the government and be a kind of a popular  offence and for that a action will not lie for it for by the same reason that  a action will lie for the plaintiff it may lie for two hundred upon the same  single question and suppose we all shall give judgement in so many action  against he and after the matter be decide otherwise in parliament what remedy  have this poor officer and the avoid multiplicity of action be the reason of  William case   c and Boulstons case in the same book   d action lie not by any  particular person against one that not be qualify build a dovecote but be  punishable in the leet but I do not say but that after the right be determine  in parliament it may be proper for a information see Brownl cro James upon the  same reason e as to the reason that such action never have be therefore it do  not lie I do not much depend upon it in the case of Guntley v Holmes cro see  also herring v finch lev turner v sir Samuel sterling vent f there be no  remedy there for the party grieve but a action but here be a remedy in  parliament beside these reason it be not allege that any return modern be make  of the member choose without his consent or vote and the action do not lie to  be sure before the return Bulst g for until then the party have no damage  powys justice accord for these reason first the officer in this case though  not proper and strict a judge yet he be quasi a judge for he have a  distinguish power who shall be admit to vote and who not not indeed final and  conclusive but at that time who to admit and who to refuse but all he do be  obnoxious to a subsequent examination in parliament second if such a officer  misbehave himself in certain case act of parliament have already give remedy  and this case may come incidently in question and be determine upon such  action as the statute have provide and the statute give remedy in one case and  be silent in all other case seem to expound the commonlaw in this point three  this will subject mayor and such officer to such a infinity of action as will  not only ruin they but also deter every body from exercise the like office for  the beat in election be so great that the lose party will never fail of bring  every man his action which the court can not join in one and so the poor  officer will be undo whereas the whole matter may be fair determine by a  action for a false return by either candidate accord to the statute fourthly  there be such intricacy in election that scarce any two town agree in some  borough a select number have the government in some all that pay scot and lot  in some potwallers or housekeeper c so that it will be hard to make a officer  distinguish they at the peril of a action it be object that by law every man  that have a injury do he ought to have a remedy therefore and that it will be  strange to tell a Englishman that he have a wrong do he and no redress for it  I answer this be no wrong to he for he do not lose his privilege of vote by it  for if a action be bring for a false return or a petition be prefer to the  house if he have a right the house will reckon his vote as much as if it have  be receive at the election ford v Hoskins cro James S c more S c roll Rep S c  Bulst a and beside if it be a injury it may be one of those that come within  the rule de least non curate law before the statute of Henry c the party it  cite have no remedy in case of false return and before the statute of and will  c do action lie for a double returnSee Onslow v Rapley lev S c vent c modern  er p five that such a action be never bring before and then Littleton argument  on the statute of Merton vide cro d which though it be not a conclusive reason  yet thus far it may be urge that it show the law be not apt to encourage  action where none be bring ever before and it be say in onslow case that  modern the parliament can not be misconusant of double return and therefore if  they bad think it convenient they will have provide a remedy it may in like  manner be say here they can not be misconusant of deny of burgess their vote  six the determination of all dispute concern election proper belong to the  house to determine and it be a fundamental right of they to determine who be  to be the constituent member of their own body and the right decision of these  thing depend upon a parliamentary kind of learning whereof most people be  ignorant as we may see by their be daily decide within the house contrary to  the opinion of all people out of door and now in action for false return the  last determination in parliament be what we must be conclude by seven the  clash of jurisdiction that will be and as to the case of sterling v turner lev  keb vent vent a it be not like this for that depend on a private custom of a  corporation and this here be parliamentary and be quote onslow case vent b  that the court of Westminster hall must not enlarge their jurisdiction Bulst c  as to the plead though he agree that it will be bad on demurrer for the  generality of the allegation that he be ready to give his vote and that they  hinder he c yet after verdict he hold it well enough and he conclude for the  defendant Powell justice at the first open of this case I be surprise with the  novelty thereof but that be no reason against it for many action be daily  bring the like whereof be never bring before I do not agree with my brother  that the officer here be a judge nor do I know what quasi a judge be sure this  officer be only a minister to execute the sheriff precept but what move I to  be of opinion against the plaintiff be that this be not such a injury or  damage to the plaintiff as will maintain a action on the case for injury be in  relation to some right a mail have except it be where a man be hinder from try  whether he have a right or not as be the case of turner v sterling lev keb  vent vent d and the case of ford v Hoskins cro James more roll Rep Bulst e be  upon solemn debate and it be compare to the case of beneficiary and use who  can not maintain case against the feoff for not execute possession however let  that case be as it will it do not oppose the case of sterling for there be a  old remedy in chancery to compel the lord to hold his court in that case and  in the other there be no manner of remedy but a action upon the case it be  object that the party here show he have a right and the jury find it upon  their oath I answer that his own allegation do not give he a right and the  jury be not judge whether he have a right or not for it be a matter sole  inquirable and determinable in parliament by their committee of election  whether their member be choose as they ought to be modern and what be that but  to determine the right of vote and there be no doubt but they have conusance  of that matter but it may be object that the determination of the right in  parliament do not avail the party injure of his vote nor repair he in damage I  answer that at least you come too soon for this action before it be determine  in parliament whether you have a right and indeed if it may be call a right it  be so dubious and uncertain a right that it be extreme hard to say until it be  determine that a man may be injure in it so as to bear a action and the  plaintiff have a proper remedy if he have a right by application in parliament  and when the matter be there determine he may then bring his action for his  damage for I agree it will be hard to suppose a injury without the mean for a  reparation in damage there be but few case in our book to this purpose but the  case in hob come up to the reason of it if a church become litigious so that  modern er p there be two person in contest about it the ordinarys safe way be  to ascertain the title by a jure patronatus if after he admit the wrong person  contrary to the inquest of the jure patronatus and the rightful patron recover  in a quare hinder he shall after have a action on the case against the  ordinary but not before the right be determine in a former action so here you  shall ascertain your right in a proper way and then bring your action and  there be great reason for this for the right may be determine quite contrary  by parliament and if we give damage and judgement against the defendant and  after the matter come before the parliament who determine against the  plaintiff what remedy have the defendant this be a monstrous mischief only to  be prevent by stay until the matter be determine in parliament beside as it  appear on the declaration there be not sufficient damage to maintain it for  every injury to maintain a action must have a real present damage or a  possibility of a future one as where one have a market and toll and another be  come with good to the market for which if sell toll will be due and a three  person hinder he from come to the market a action lie for the lord of the  market because of the possibility of damage another fault in the declaration  be that he do not particular tell how the defendant obstruct he as that he  shut he out and though it be after verdict yet the declaration must be so  certain as to be substantial for if a action be bring by he in reversion for  refuse to let he come upon the ground to see waste and he only say that he  obstruct he and do not show how a verdict will not help it again it be inside  recusavit  Indeed if it be a thing that lie in demand as a rentseck there  demand and say object be enough but here he say he refuse his vote what then  if he give it it be nevertheless a vote for the officer refuse it and if there  be room modern to controvert it it will have be look upon as much a vote as if  it have not be refuse then this right of vote have no profit in it and it be  as criminal to take money for it as to sell a presentation as far as I can see  yet there be no damage in quare hinder at commonlaw therefore why here and if  so no action ought to be the multiplicity of action which the law will never  suffer but upon failure of other remedy and that be the reason of the case of  the common wateringplace in Southwark because there be no other remedy but if  a indictment will have lie no action can have be maintain there but here be  another remedy and he agree the case of hem v finch that a action will lie for  refuse a freeman his vote in choose a mayor but there the party have no other  remedy beside this will be a great discouragement to sober discreet man to  meddle with these office and the difficulty of election and right of vote in  some corporation be very great so be a action of the first impression attend  with many inconvenience and the right determinable elsewhere I be against the  plaintiff but after right determine in parliament for the trouble and charge  the party be at in prosecute his right a action may lie holt chief justice the  case be true open and 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  choose a burgess of parliament for that borough he refuse and obstruct from  give his vote whether I say he have any remedy in the king court for this  wrong against the wrongdoer all my brother agree that he have no remedy but  they differ in their reason I can agree with they for I think the action well  maintainable and first I shall consider the reason give by my brother the  first reason give by my brother gold be that this officer be a judge of the  matter and therefore no action lie against he but brother powys do not whole  concur with he in that he say he be only quasi a judge but brother Powell  through explode that reason and say he be neither a judge nor any thing like a  judge and certain he be in the right of it for he be nothing like a judge for  what have he to do as judge the sheriff receive the writ and be command to  execute it and thereupon he make a precept to the officer of the borough by  virtue of the writ and what have he to do but to call the town together and  give they notice to come and make their election and then to receive their  vote and cast they up and return he choose that have the majority and all this  be pure ministerial modern er p but the method I shall observe in maintain my  opinion is First to show that the plaintiff have a right and privilege to give  his vote modern second that in necessary legal consequence of this right if he  be hinder or obstruct in the exercise or enjoyment of it the law give he a  action and three that this be the proper action the law give he to vindicate  his right and recover damage for the injury do I do not think it difficult to  prove that he have a right but it may be necessary to show that he have a  right vest in he to maintain this action it be not doubt but that the Commons  of England have a considerable property in the estate of the land and that for  that reason they have a great part of the legislative authority without who  consent no new law can be make no old one abrogate or tax give but because the  vast number of which the community be make render it impracticable for they  all to exert this right therefore by the constitution of the land they be to  send particular member choose by and from themselves to parliament who when  they be choose have the full power and authority of those that send they that  be knight for shire citizen for city and burgess for borough these be the  three sort of person qualify to have this great trust repose in they first as  to knight of shire the election of they belong to the freeholder of the county  and this be a original right vest in they and inseparable incident to their  freehold and a freeholder can be deprive of this right no more than of his  freehold before the statute of Henry c any man that have a freehold of ever so  small a value have a power to give his vote at the election of a knight of the  shire and that statute recite the mischief thereof and confine that power to a  freehold of forty shilling per annum yet though it be confine to that value  and inferior freeholder exclude still it remain a original right to the  freehold of those that have a right of vote or that have a freehold above  forty shilling or of that value per annum the second sort be of citizen and  burgess I put they together because they both be upon the same foundation and  no difference between they but only that a citizen be of great dignity in all  other thing they agree now there be two sort of borough the first where the  elector give their vote in respect of their burgages the second where they  give they as member of the corporation the first sort that vote by reason of  their burgages do it as freeholder of house within the borough by  burgagetenure of the lord of the borough which be a very ancient tenure and  hold place in the most ancient town in England that send burgess to parliament  and the right of choose burgess to parliament be incident to every tenant in  burgage with Litt so that it be modern part of their constitution whether  incorporate or not and the borough in question be a borough not incorporate  and therefore this right be upon account of their inhabitancy and not part of  their tenure but a privilege annex to their burgagelands and be a real right  belong to their estate the other sort be when there be a corporation by  charter or prescription that corporation by consequence choose and send member  to parliament and whereas this right in those that bold by burgagetenure be a  real interest annex to their estate and inheritance in those that do it as  freeman of a corporation either by charter or prescription it be a personal  privilege the inheritance whereof they have by their charter or by  prescription in such manner as the charter or the prescription direct which  right and inheritance be lodge in point of right in the whole body politic  though the exercise and possession be in particular member pursuant to the  special direction and limitation of the charter or the usage of the  prescription if the corporation he begin within time of memory it must be by  grant and he quote the case of the town of dungannon in Ireland   hob a the  town be incorporate by the name of provost free burgess and commonalty c et  beyond that the say provost and free burgess shall choose parliamentman and it  be hold on debate that the last clause vest the say privilege in point of  interest in the corporation but confine the exercise to the provost and  burgess so let the exercise be accord to the charter or the prescription  either in some particular member or in all still the right and interest be in  the whole corporation I say that this be a distinct and particular right vest  in every member of the body politic though the exercise be in a particular  number for if we but consider the matter serious it be they who modern er p  person estate and liberty be put in the power of the choose member that ought  to have the right of vote for and choose such member vest in they and it be  not quatenus they be a corporation that they can give this power to bind their  property but it be as they be particular private natural person as in London  the body politic do not pretend to the right but it be in all the natural  member that compose the corporation though exercise by a select number and  sure the freeman of England have too considerable a estate in this right to  have it only lodge in a body politic and when parliamentman be pay wage it be  pay not by the corporation but by the whole community upon the back of a roll  in the reign of Edward the three Edward memb a there be a writ direct to the  mayor and alderman of n command they to raise from the community of the whole  town and abundance of other writ there be in like manner for raise the salary  of parliamentman of the whole community and not of the corporation which  sufficient show that the corporation only be not represent but also all the  whole community for none ought to contribute but who be represent modern it be  no new thing but agreeable with reason and rule of law for a franchise to be  of a inheritance in a body politic and the enjoyment and benefit of it to  enure to the town in their private and natural capacity and this be a case of  constant experience prescription in the burgess of Derby for common for their  cattle levant et couchant I sand b so if it be a burgess he have a distinct  property and right as such if a freeman he vote in his natural capacity and  his person estate and liberty be bind by it therefore he have a right in it I  wonder to hear it say that it be so small a right as a injury offer to it  shall be unpunishable by the rule of de least non curate law be it a little  thing to have the privilege of give a vote in the election of a person in who  power my life estate and liberty lie obstruct see the statute and Henry c and  the statute car c concern Chester the one and the other concern Durham and  note the word privilege and liberty in they note to the former edition c it be  plain that the want of this privilege occasion damage and the have it prevent  it so it be a great privilege to vote for a parliamentman and sure every one  that have that great privilege have a right in it and if so of necessary  consequence he have a action to vindicate and maintain that right second it be  a vain thing to imagine that there shall be right without a remedy want of  right and want of remedy be termini changeable a man buy the inheritance of  air advowson see Bredimans case   a and upon the next avoidance there be a  usurpation if there be no quare hinder within six month he have lose his right  because he have lose his remedy for suppose upon the next avoidance he shall  present by usurpation and die seize his heir can not be remit so it be without  a precedent to have a right without a remedy one indeed may have both right  and remedy and lose his remedy and by consequence his right will it not look  strange to any man who have hear of our constitution that the Commons of  England shall have a share in the legislature by member eligible by themselves  and that it shall lie in the power of a sheriff or other officer to deprive  any of they of so transcendent a right and he to be without remedy by the law  of England take it then that the plaintiff have a right it be most apparent on  the record that this officer do exclude he from the enjoyment thereof and in  so do he do well or ill none will say that he have do well then he have do the  plaintiff wrong in so bar he of his right and it be not at all material  whether the candidate that he will have vote for be choose or likely to be for  the plaintiff have a right to vote and be hinder of that he have a wrong do he  for which he ought to have a remedy if a Act of parliament be make for the  benefit of any person and he be hinder by another of that benefit by necessary  consequence of law he shall have a action   Inst b and the current of all the  book modern be so how come a action of temptation to sin great man the statute  give none it be make for public peace but be for the benefit of great man of  consequence a action lie for they and that be the reason why a writ of error  lie not in the exchequer Chamber in a action of scandal great man because  modern er p it be not any of the cause mention but a action find upon the  statute now if this be so in case of a Act of parliament why shall not  commonlaw be so too for sure the commonlaw be as forcible as any Act of  parliament and the commonlaw be that a freeholder shall vote in choose knight  c and if you have a right by law so to do shall not that law give he a action  against he that bar he of that right by the statute of Westminster the first  cap all election ought to be free the word be general two all election now  then where this Act which indeed be but a enforcement of the commonlaw take  this matter to be of so great consequence as to declare it and give a new  authority and sanction to it sure it be a very bold stroke to say that when a  man be hinder in his election he have no remedy and it can be less than a  violation and a opposition to that statute to say that he have no remedy after  that the statute have so manifest interpose in it three that this be his  remedy my brother gold say and all my brother agree with he that he have no  hurt do he but I think it impossible that there shall be a injury without  damage injury in its nature import damage though it cost not the party injure  a farthing for damage do not consist in thing pecuniary but in a disturbance  of right if word be speak of a man who reputation be so very entire that  nobody believe the word so that be lose nothing by they yet because it be a  injury to a man to be ill speak of be shall recover damage suppose one give  another a cuff on the ear but do not hurt he yet for the indignity offer to  his person a action lie so if another ride in a pathway in my land I may have  a action because it be a invasion of my property and a injury to my right and  here the wrong be not way et arms so as to maintain trespass general the law  in that case give this remedy if a man have return and execution of writ and  another enter and execute a writ within his franchise be shall have action  upon his case for the invasion upon the right a acquire here for the party  have a right and the defendant disturb he in the enjoyment of it but it be  object that here will be a multiplication of action I answer so there ought  for if one will multiply injury it be fit the action for the same shall be  multiply as if in this case the defendant have take upon himself to refuse  forty vote why shall be not be liable to as many action for if he have beat  forty man every one of they will have a action against he for every man damage  be distinct from the other if many man be injure by one particular act there  the wrongdoers shall be punish by way of indictment because action shall not  be multiply but if there be but one man modern offend by that particular act  or a more special manner than other be shall have his action and if be injure  a three person by another particular act be shall have his action et such in  infinitum if there be a common and one hundred commoner thereof and one person  dig a pit there for that one pit everyone of the hundred shall have his action  because of their several right but if a pit be dig in a highway then it will  be a common public nuisance and that be the true reason of williams case and  of the case of turner v sterling lev vent vent b there he be not elect for it  can not appear who have the majority be or his competitor there be can not  give his loss of place in evidence for damage because he be not elect but the  cause of complaint be that it be difficult on the view to guess who be choose  he have a right to demand a poll and the denial of that be a injury to his  right for which the action be hold maintainable and be quote Dowmans case roll  Rep SC cro James c if a man make a lease the law give he leave when he think  fit to come and see if there be waste and if be come to see and the lessee  hinder he although it do not appear what the damage be or that any waste be  commit yet he shall have his action because he have a right in the enjoyment  whereof he be disturb my brother say Oh alas here be a remedy in parliament we  must be very tender for the matter be nice and the parliament may judge this a  different way I answer that as this case be they can go to parliament for it  be agree that those against who he will have vote be elect and his grievance  here be that he be not represent for if a man be not allow to give his vote he  be not represent if he be allow his vote and the majority be against he his  vote be include modern er p in the majority and the encourage of remedy for  injury be the most effectual way to make these officer honest and observant of  the constitution of their city and borough and they will decline such practice  as we daily see they guilty of but it relate to parliament what then it be a  matter that whole depend on charter or on prescription and they sure be thing  of which the queen court have conusance and to judge of they be not to enlarge  their jurisdiction and if this be matter within our jurisdiction we be upon  our oath bind to maintain it more especial when they can go to parliament if a  freeman of a borough have apply to the house of Commons for that he be deny  his vote they will have send he to take his course at law as to the authority  of my Lord Hobart hob a it be true my Lord Hobart be of that opinion and it be  a very fine one but how it will bold on debate may be doubtful there be indeed  no damage in a quare hinder at commonlaw but the statute give it against the  disturber and if the plaintiff in a quare hinder do not make the bishop a  disturber he be bar of the benefit of the statute modern but let that be how  it will it be not like this because as this case be they can have no recourse  to parliament to ascertain the right as to the say of Littleton that such a  action be never bring and that therefore it lie not it be true nonuser be a  good argument where it be support with reason otherwise not this save be upon  the statute of Merton cap the statute say that if a lord by knight service  marry the heir under fourteen where he be disparage si parent to complain and  the question be what be mean by to complain whether it must be a complaint in  a judicial manner and it be agree that to complain be the same as if he have  cause of complaint and that as a more severe construction against the lord if  he shall be so unjust as to disparage his ware he shall lose he and that in  consequence must have be by a entry upon the lord and that if they be disturb  they shall have a ejectment of ware because the law give they the custody so  in that case the argument be ground on reason from the very word of the  statute and the constant construction thereupon and to carry it general far  and to extend it to all new case will destroy many late authority as the case  of hunt v Dowman cro James roll Rep b in the sixteenth year of James the first  for hinder a lessor to see if waste be commit which be the first of the kind  as be also the case of turner v sterling let we consider wherein the law  consist not in particular instance but in the reason that rule they where  eaden ratio there idem law and if where one be injure in one sort of right he  have a good action why shall he not have it in another or how do this differ  from other case for though the house of Commons have a right to determine  election yet they can judge of the charter original but secondary or as  incident to 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 queen jurisdiction and not to be frighten  because it may come in question in parliament and I know nothing to hinder we  from judge of matter depend on charter or prescription the case of Morse v  slay car vent a be the first of the kind and the case of smith v Crawshaw W  Jones b a action for malicious indict for treason and he quote a case of  bodily v lawn car c in the Lord Bridgmans time for there a action be hold  maintainable for a man against some that have make a ride for he and his wife  the wife it seem have be use to henpeck her husband and he conclude for the  plaintiff note a writ of error be bring of this judgement before the lord and  the judgement reverse