Ashby vers white et elsewhere Lord Raymond er p railway company lr c p refer  to metropolitan board of work v MCarthy lr h l not apply wood v wood lr ex  refer to Dalton v Angus App Cas consider and apply bow v hall Q b d apply  Bradlaugh v Erskine lt refer to the Bernina p d Ratcliff v Evans Q b comment  on chaffer v goldsmid Q b refer to Allen v flood a c SC holt Mod declaration  post vol p record saint Tr a man who have a right to vote at a election for  member of parliament may maintain a action against the return officer for  refuse to admit his vote S c salk salk vide I bro parliament Cas saint Tr post  though his right be never determine in parliament SC salk salk and though the  person for who he offer to vote be elect placita in person lord ring at  westmonasterium de boundary consecrated hilarii year will king rot buck sacred  scripture Mathias Ashby to express grief de William white Ricardo Talbois  William bell et Ricardo Heydon in custodian marescalli c pro eastern videlicet  quod cum die novembris will e curian porter Self domini king nunc at  westmonasterium in county Middlesexiae to flow out a certain breve Self domini  king nunc tune vicecorditi buck prediction straight line to read out quod  speech dominus king de advisamento et assent council Himself pro a certain  steep place et roll up pain the same dictum owner king statumi et a defending  royal power Himself England et church England concernentibus a certain  parliament sutim at community svan westmonasterium sexto die of purifying tune  proxime about to be ieneri ordinaveri et ibidem cum to bear before great man  et nobles speech royal power Himself colloquium to have et tractaturn idem  dominus king nunc eiden tune viscount buck per dictum breve to take beforehand  Lord Raymond really injungend quod fanctam proclamation in proximo speech  county his post reception the same short catalog to hold de die et loco  prediction duos soldier sword girdle to greater extent fit et to separate  comitatus prediction et de where you will community comitatus that duos fellow  citizen et de whithersoever you please castle duos citizen de discretioribus  et to greater extent to put under freely et indifferently per that who  hujusmodi proclamationi to interrupt in speaking juxta form to cause to stand  ind high et provision elegy et nomina eorundeni soldier a citizen et burgensi  such to pluck out in a certain indenture inter Self tune viscount et that who  hujusmodi choice to interrupt in speaking ind conficiend although hujusmodi to  pluck out present circumstance to bore well send away plant eosque ad speech  they et locum venire to make ita quod idem soldier full et to put under power  pro see et partnership comitatus c civitaturn et burgor to say before  separately ab Self haiberent ad faciendum et to agree his who tune ibidem de  common council speech royal power Self domini king nunc to be favorable a god  con to wet regular super negotils antedictis ita quod pro diminution power  hujusmodi seu near not foreseeing choice soldier a citizen or burgensi to say  before dictam to carry on business infectan non to stay behind to any place  whatever modus et choice that in full county Self tune viscount factani  distinct et aperte sub seal his et seal the dawn who choice that to interrupt  in speaking eiden lord king nunc in cancellar svan ad speech they et locum  certificaret indilate remitte eiden lord king alteran parten indenturae  prediction eiden shorten garment stitched together One cum shorten there quod  indeed breve postea et ante praedicturn Sextus they of purifying in shorten  prediction mentionatum scilicet of the tenth year say in addition to at  burguni de Aylesbury prediction in speech county buck cuidem Roberto weeden  armigero tune viscount the same comitatus buck weigh to be in form law to  follow to the grave army culius indeed short catalog prediction robertus  weeden sheriff comitatus buck prediction ut carry in front tune et ibidem to  step out postea et ante prediction sextuni they of purifying scilicet of the  tenth year say in addition to at burgun de Aylesbury prediction in speech  county buck fecit a certain teaching suum in scribe sub seal Self roberti  weeden duty Himself viscount comitatus buck prediction constabularies castle  de Aylesbury prediction straight line to read out they et locum parliament  prediction to hold in the same way as eos require et the dawn in order to hand  over quod fanctam proclamation infra burgun Lord Raymond er p prediction de  die et loco in eoden teaching read aloud to allege as a reason freely et  indifferently to pluck out duos citizen castle that de discretioribus et to  greater extent to put under per Self who hujusmodi proclamationi to interrupt  in speaking juxta form statutor in ankle grammatical case editor et one who  foresees et nomina speaker burgensi such elector although present circumstance  to bore well send away plant in a certain in denturis inter dictum viscount et  that who to have interest in hujusmodi ejection et quod eos venire to make ad  they et locum in eoden teaching read aloud ita quod speech citizen to have  Lord Raymond full et to put under power pi oh see et partnership castle  prediction ad faciendum et to agree ii who tune ibidem de common council  speech royal power to be favorable a god to touch regular super pain  antedictis ita quod pro diminution hujusmodi power or near not foreseeing  choice burgensi pLedictorum dictam to carry on business infectan non to stay  behind et quod choice indilate eiden tune viscount certificarent mittent eiden  viscount alteran parten indenturae praedictm speech teaching fastening ut idem  sheriff the same certificaret speech lord king in cancellar svan ad they et  locum prediction quod indeed teaching postea et ante prediction Sextus they of  purifying scilicet eoden of the tenth year say in addition to at burgun de  Aylesbury prediction in speech commitatu buck the same W W r t W b et r h  adtutic et usque ad et post retornam the same short catalog constabularies  castle de Aylesbury prediction to step out in form law to follow to the grave  weigh to be who indeed W W c ration duty Himself prediction constabulariorum  castle prediction execution teaching that de jure adtunc et ibidem to stretch  out army pron  interrog  indeed teaching ac vigor short catalog prediction  fide citizen castle prediction to step out in she part debit forewarning  postea et ante Sextus of purifying scilicet January year c at burgun de  Aylesbury prediction in person the same W W c constabularies prediction  assemblati to be ad duos citizen pro castle there to pluck out secundum  urgency short catalog et teaching to say before et durante assemblatione that  ad inten tionem that et before hujusmodi two citizen army short catalog et  teaching be in charge speech dainties to be scilicet die et year ultinio say  in addition to at burgun de Aylesbury prediction in county prediction idem  Mathias Ashby adtunc et ibidem to step out citizen et inbabitans castle  prediction et alms ibidem or alibi adtunc or before non To take back send  debit qualify et intitulatus to step out ad vote suum ad to pluck out duos  citizen pro castle prediction secundum exigentiana short catalog et teaching  prediction to hand over in person the same W W c quatuor constabularies castle  that who tune et ibidem debit to stretch out ad vote Self matthiae Ashby de et  in to send forward to take in hand et allocandum a preparation to be et to  bring before vote stium dare pro to pluck out thomam lee baronettum et  Sinionem main armor bearer duos citizen pro parliament there army et secundum  urgency short catalog et teaching to say before ac vote Self matthiae tune et  ibidem de jure to withhold to send to et prediction W W c such constabularii  castle prediction tune et ibidem to step out tune et ibidem requisite to be  per Self matthiam Ashby ad vote Self matthiae Ashby prediction in to send  forward To take back et allocandum idem yet W W c adtunc et ibidem  constabularii castle prediction to step out praemissor non igmari send  a machine et fraudulently et wickedly to stretch out the same matthiam Ashby  in here part daninificare et de privilegi his de et in to send forward  prediction Lord Raymond to entangle et altogether frustrate the same m a vote  suum in she part dare adtunc et ibidem obstruxer et adtunc et ibidem inside  recusaver ad the same m a vote suum pro to pluck out duos citizen pro castle  there ad parliament prediction dare to let pass ac vote Self m a pro ejection  there non To take back nor allocaverunt ac two citizen de castle there pro  parliament prediction praeldidio m a such ut carry in front sluice without to  some place vote Self m a adtunc et ibidem army short catalog et teaching  prediction dainties to be in enervationem prediction privilegi Self m a de et  to send forward prediction unde idem m a to say quod deterioratus be et damnum  to have ad valentian librartim et ind to lead forth sectan c after a verdict  for the plaintiff on not guilty plead it be move in arrest of judgement by  sergeant Whitacre that this action be not maintainable and for the difficulty  it be order to stand in the paper and be argue Trin Q whether by Mr wield and  Mr Montague for the defendant and this term judgement be give against the  plaintiff by the opinion of Powell powys and gold justice holt chief justice  be of opinion for the plaintiff Lord Raymond er p gold justice I be of opinion  that judgement ought to be give in this case for the defendant and I can by  any mean be reconcile to give my judgement for the plaintiff for there be no  footstep to warrant such a opinion but only a single case I be of opinion that  this action be not maintainable for these four reason first because the  defendant be judge of the thing and act herein as judge second because it be a  parliamentary matter with which we have nothing to do three the plaintiff  privilege of vote be not a matter of property or profit so that the hindrance  of it be mere damnum without in an unjust manner fourthly it relate to the  public and be a popular offence as to the first the king writ constitute the  defendant a judge in this case and give he power to allow or disallow the  plaintiff vote for this reason it be that no action lie against a sheriff for  take insufficient bail because be be the judge of their sufficiency so be the  case of Medcalf v Hodgeson hut and their sufficiency be not traversable lev  Bentley v Hore upon the same reason the resolution of the court be find in the  case of Hammond v Howell Mod that noVide ante and the book there cite a action  lie against a man for what he do as a judge Henry p this be a parliamentary  matter and the parliament be to judge whether the plaintiff have a right of  elect or not for it may be a dispute whether the right of election be in a  select number or in the populace and this be proper for Lord Raymond the  parliament to determine and not for we and if we shall take upon we to  determine that he have a right to vote and the parliament be of opinion that  he have none a inconvenience will follow from contrary judgement so in Ventr  onslow case it be adjudge that no d content will a action lie for a double  return of member to serve in parliament the resolution of the king bench in  the case of Barnardiston v soam lev be give on this particular reason that  there have be a determination before in parliament in favour of the plaintiff  and hale say we pursue the judgement of the parliament but the plaintiff will  have be too early if he have come before and yet that judgement be reverse it  be not any matter of profit either in present time or in going to be to raise  a action upon the case both damage and injury must concur as be the case of  Henry cite hob if a man forge a bind in another name no action upon the case  lie till the bind be put in suit against the party so here it may be this  refusal of the plaintiff vote may be no injury to he accord as the parliament  shall decide the matter for they may adjudge that he have no right to vote  whereby it will appear the plaintiff be mistake in his opinion as to his right  of election and consequent have sustain no injury by the defendant deny to  take his vote it be a matter which relate to the public and be a kind of  popular offence and therefore no action be give to the party for by the same  reason one man may bring a action a hundred may and so action infinite for one  default which the law will not allow as be agree in williams case   a and b  Boultons case perhaps in this case after the parliament have adjudge the  plaintiff have a right of vote a information may lie against the sheriff for  his refusal to receive it so the case of ford v Hoskins cro Brownl such a  action as this be never bring before and therefore shall be take not to lie  though that be not a conclusive reason as to the case of sterling v turner lev  Ventr where a action be bring by the plaintiff who be candidate for the place  of Bridgemaster of London for refuse he a poll and adjudge maintainable there  be a loss of a profitable place so the case of herring v finch lev where the  plaintiff bring a action on the case against the defendant for that the  plaintiff be a freeman who have a voice in the election of mayor the defendant  be the present mayor refuse to admit his voice in that case the defendant be  guilty of a breach of his faith and in both these case the plaintiff have no  other remedy eitherin Lord Raymond parliament or any where else as the  plaintiff in our case have so that I be of opinion that judgement ought to be  give for the defendant upon the merit but upon this declaration the plaintiff  can maintain any action for the plaintiff do not allege in his count that the  two burgess elect be return and if they be never return there be no damage to  the plaintiff see Bulstr but I do not rely upon this fault in the declaration  powys justice I be of the same opinion that no action lie against the  defendant because the defendant as bailiff be quasi a judge and have a  distinguish power Lord Raymond er p either to receive or refuse the vote of  such as come to vote and do preside in this affair at the time of election  though his determination be not conclusive but subject to the judgement of the  parliament where the plaintiff must take his remedy if the defendant misbehave  himself in his office by make a false or double return a action lie against he  for it on the late statute W c and therein all this matter of refuse the  plaintiff vote be comprise and all the special matter be scan in that action  and if you allow the plaintiff to maintain a action for this matter then every  elector may bring his action and so the officer shall be load with a number of  action that may ruin he and he may follow one law suit though he may not be  able to follow many these action proceed from heat I will not call it revenge  and it be not like split of action scilicet of one cause of action into many  but the cause of action be several and the court can unite they but a b c d e  and a hundred more may at this rate bring action there be a vast intricacy in  determine the right of elector and there be a variety and a different manner  and right of election in every borough almost as in some borough every  potwaller have a right to vote in some resiants only vote and in other the  outly burgess that live a hundred mile off nay I know Ludlow a borough where  all the burgess daughter husband have a right to vote but now all this matter  be comprise in a action against the officer for a false return but it be  object that by the law of England every one who suffer a wrong have a remedy  and here be a privilege lose and shall not the plaintiff have a remedy to that  I answer first it be not a injury proper speak it be not damnum for the  plaintiff do not lose his privilege by this refusal for when the matter come  before the committee of election the plaintiff vote will be allow as a good  vote and so in a action upon the case by one of the candidate for a false  return Lord Raymond this tender of his vote by the plaintiff shall be allow as  much as if it have be give actual and receive and if this refusal of the  plaintiff vote be a injury it be of so small and little consideration in the  law that no action will lie for it it be one of those thing within the maxim  de least non curate law in the case of ford v Hoskins cro more Bulstr roll Rep  where a action be bring against the lord of a copyhold manor for refuse to  accept one name as successor for life by the precede tenant for life accord to  the custom there the plaintiff suffer a injury and yet it be adjudge that no  action lie the late statute W c give a action against the officer for a  misfeasance to the party grieve I e to the candidate who be to queen whether  the word give be not improper substitute for the word have a give his vote so  that by the judgement of the parliament he can have any action before the  statute of h no d content I will b action lie for the candidate who be the  party aggrieve against the officer for a false return because it relate to  parliamentary matter as be adjudge lev Onslow v Rapley and yet he have a  injury and till the W no d content will c action lie for the candidate against  the officer for a double return as be adjudge in the same case lev Ventr and  yet he suffer a injury thereby a strong no action shall lie for the plaintiff  in this case this action be not maintainable for another reason which I think  be a weighty one videlicet this action be chiefs impression never the like  action be bring before and therefore as vide   Litt b Edward n d Littleton S  use it to prove that no action lie on the statute of Merton h c si parent to  complain for if it have lie it will have sometime be put in use so here so in  the case of Lord say and seal v Stephens cro for the law be not apt to catch  at action it be agree by the consent of all age that no d content will e  action lie at commonlaw against the officer for a double return and yet in one  year videlicet there be no less than seventy double return and yet they make  no Act to help it though the parliament can not be misconusant of the matter  another reason against the action be that the determination of this matter be  particular reserve to the parliament as a matter proper conusable by they and  to they it belong to determine the fundamental right of their house and of the  constituent part of it the member and the court of Westminster shall not tell  they who shall sit there beside we be not acquaint with the learning of  election and there be a particular cunning in it not know to we nor do we go  by the same rule and they often determine contrary to our opinion without door  the Lord Raymond er p late Lord Raymond statute which enact that the last  determination of the house as to the right of election shall be a rule to the  judge in the trial of any cause be a declaration of their power and the path  the judge be to walk in be chalk out to they so that they be not leave to use  their own judgement but the determination of the house be to be the rule of  law to we and we be not to examine beyond that suppose in this action we shall  adjudge one way and after in parliament it shall be determine another way or  suppose a judge of nisi prius before who the cause come to be try shall say I  be not bind by the rule of the last determination in parliament in this action  for this be another sort of action not within the meaning of the statute these  thing will be of ill consequence another reason against this action be that if  we shall allow this action to lie for the plaintiff a strong we must allow a  action to be maintainable for the candidate against the defendant for the same  refusal for the candidate have both damnum et in an unjust manner and be the  party aggrieve and if we shall allow that we shall multiply action upon the  officer at the suit of the candidate and every particular elector too so that  man will be thereby deter from venture to act in such office when the act  therein become so perilous to they and their family I will not insist upon the  exception to the declaration but give my opinion upon the merit I think there  be a sufficient allegation in the count of the return of the election especial  after a verdict nor shall I insist that it do not appear in the declaration  how near the party be to be choose nor that this action be bring mere for a  possibility for this be a action for a personal injury and the plaintiff may  give his vote for which he please either the candidate that have few or more  voice or he may give his vote for one who have no other burgess voice but the  plaintiff own for the plaintiff in those case be deprive as much of his  privilege as if the person for who he vote be near to be choose but it have be  object that the defendant shall not have absolute refuse to receive the  plaintiff vote but shall have reserve it for a scrutiny and shall have admit  it de bene be to that I answer lie may indeed have do so but he be not oblige  to do it for the officer be suppose to know every man right and pretence of  election and common the weak party be for bring in new vote and devise new  contrivance but the officer ought to disallow they at first and not to give so  much countenance to such a practice as to reserve it for a scrutiny as here in  WestminsterHall when a matter of law come before we if it be a clear case we  may give judgement in it on the first argument and it will be a good judgement  although it be usual to hear several argument the objection of weight Lord  Raymond be the resolution between sterling and turner lev hale say it be a  good precedent and the case of herring and finch lev though as to that case it  be not adjudge upon the matter of law but go off upon a point of evidence yet  I will admit the action to lie for the plaintiff in those case but they do not  at all relate to the parliament but be matter of custom mere relate to the  government of the city and be proper determinable at commonlaw and although it  may be say that this case also relate to the government of the town so do a  public nuisance in a highway but if a particular person receive a injury he  may have his action but that do not relate to the parliament as this matter do  and the whole case here turn upon the its be a parliamentary matter if we  shall admit this action to lie we shall have work enough in westminsterhall  bring in by a sidewind day so much that we shall even be glad to petition the  parliament to take this power away from we beside the judgement here can be  call proper a determination it will only be a litigation for our judgement can  be cite as a authority in parliament nor will the parliament mind it or be  bind up by it for they vide g c S dougl on election a themselves be not bind  even by their own determination but may determine contrary to it though that e  a rule upon the court of Westminster but it have be object that that this be  no determination of the election in this judgement but only of a particular  injury to that I answer it will be in consequence of a determination of the  election for if the the plaintiff have a right to vote then this action be  maintainable if he have no right then he can have no action and by consequence  twenty other may have a right to vote and the election may turn upon this  single vote and his right of vote be as much parliamentary as the whole  election and may as much entangle the case it be say Lord Raymond er p in  onslow case Ventr that the court at Westminster must not enlarge their  jurisdiction in these matter far than the statute give they and indeed it be a  happiness to we that we be so far disengage from the beat which attend  election our business be to determine of meum and tuum where the heat do not  run so high as in thing belong to the legislature therefore this be a  unprecedented case I shall conclude with a say of my Lord coke Bulst all men  renewal plus restored state troubled how usefulness prod Powell justice I be  of the same opinion that judgement ought to be arrest as to the novelty of  this action I think it no argument against the action for there have be action  on the case bring that have never be bring before but have their beginning of  late year and we must judge upon the same reason as other case have be  determine by I do not agree with my brother Lord Raymond upon their first  reason that the defendant be a judge I do not understand what my brother powys  mean by say be be quasi a judge sure be must be a judge or no judge the  bailiff be not a judge but only a officer or minister to execute the precept  but I agree with they in their other reason to give judgement against the  plaintiff and chief because in this action there do not appear such a injury  or damage as be necessary to maintain a action on the case a injury must have  relation to some privilege the party have the case of turner and sterling lev  be adjudge upon a particular reason for the defendant by refuse he the poll  deprive he of the mean of know whether he have a right or not if beneficiary  and use desire the feoff to make a feoff over to another and they refuse no  action upon the case lie against they for this refusal and in the case of ford  against Hoskins Bulstr cro it be resolve that no action lie for the nominee  against the lord for refuse to keep a court and to admit he yet that be a hard  case for the party be thereby deprive of the mean of come to his right but  that case differ from the case of sterling against turner for the party bath a  know remedy in chancery to compel the lord to hold a court and admit he but  the other have no remedy against the mayor but a action here be no injury to  the plaintiff for though he have allege in his declaration that he have a  right to vote and be hinder of it by the defendant yet that do not give he a  right unless the find thereof by the jury do confer such right but that can be  so for the jury can judge of this right in the first instance because it be a  right proper determinable in parliament the parliament have a peculiar right  to examine the due election of their member which be to determine whether they  be elect by proper elector such as have a right to elect for the right of vote  be the great difficulty in the determination of the due election and belong to  the parliament to decide but it be object admit the the plaintiff have a right  to vote and be deprive of it shall he have no remedy to that I answer be shall  have a remedy in proper time but the plaintiff here come too soon be shall  have a remedy by action after the parliament have determine that he have a  right but not before this be not such a right the deprivation whereof will  make a injury till it be determine in parliament but the plaintiff have a  proper remedy by petition to the parliament set forth his case and after the  parliament have adjudge that he have a right of vote be shall have a action at  law to recover damage when his right be so fix and settle the opinion of my  Lord Hobart in the case of sir William Elvis and the archbishop of York hob  and the reason of that opinion come very near to the present case that if the  church be litigious and two clerk be present to the ordinary and he award a  jure patronatus Lord Raymond to inquire which patron have the right and the  inquest find for one and yet the ordinary receive the clerk of the other  contrary to the find of the jury in that case if the other patron bring his  quare hinder against the usurper and his incumbent not name the bishop and  prove his title he may afterward have a action upon the case against the  ordinary for that wilful wrong delay and trouble that he have put he to and be  shall recover cost and damage not in respect of the value of the church for  there be no damage for that by the commonlaw but by west Edward saint c S but  for the other respect before mention but if be name the ordinary in the quare  hinder he can have no other action of the case neither shall he have such  action upon the case before be have try his title in a proper action and  against the proper party so that in that case though the Lord Raymond er p  patron right be find by the jury on the jure patronatus be in some measure  determine yet be shall not maintain a action upon the case against the  ordinary but he must first prove his title in a proper manner by a quare  hinder and thereby prove the ordinary a disturber and after that he may bring  his action on the case against the ordinary for his damage where the party  have no possibility of settle his right as in the case of sterling and turner  there he shall maintain his action for the disturbance before his right be  settle but where he have a proper method as in our case he shall not maintain  a action till his right be determine and the reason of this difference be very  strong because of the inconvenience of contrary determination upon the several  action or of the different judgement by the house f Commons and the judge at  commonlaw for the house may be of opinion that the plaintiff have a right to  vote and yet the judge may be of opinion upon the action that he have none and  give judgement against he and then though he have a right he will have no  remedy et e turning but this difference of opinion will be prevent by such a  previous application to the house before any action bring beside in this case  here be not a damage upon which this action be maintainable for to maintain a  action upon the case there must be either a real damage or a possibility of a  real damage and not mere a damage in opinion or consequence of law for a  possibility of a damage as a action upon the case lie for the owner of a  ancient market for erect a new market near his and yet perhaps the cattle that  come to the old market may not be sell and so no toll due and consequent no  real damage but there be a possibility of a damage but in our case there be no  possibility of a damage it be lie in the declaration that the defendant  obstruct he from give his vote but that be too general without show the manner  how he obstruct he as that the defendant keep he out of the usual place where  the vote be take the plaintiff Lord Raymond show no damage in his count and  the verdict will not supply it for the plaintiff ought always to allege a  damage as in a action upon the case bring against the lessee by he in the  reversion for refuse to permit he to enter to view waste it will not be  sufficient to allege thus general that the defendant obstruct he c it be lie  here that the defendant Self the plaintiff ad vote suum dare obstruxeru et  inside recusaveru I do not know what that mean in this case indeed it be a  sufficient description of a seize of a rend seck but if the plaintiff give his  vote for a candidate that be as effectual as if the officer writ it down for  it be his vote by the give of it and the officer can binder he of it and on a  poll it will be a good vote and must be allow and so there be no wrong do to  the plaintiff for his vote be a good vote notwithstanding what the defendant  do beside the plaintiff can make no profit of his vote and it be like the case  of a quare hinder in which the plaintiff at commonlaw recover no damage  because he ought not to sell the presentation and so can make no profit of it  so here for it will be criminal for the plaintiff to sell his vote perhaps the  put the plaintiff to trouble and charge to maintain and vindicate his right of  vote may be sufficient damage to maintain a action on the case but as our case  be I can see that the plaintiff have receive any damage great inconvenience do  attend the allowance of this action as my brother have say as that it will  occasion multiplicity of action and for that reason it be that the law give no  action to a private person for a public nuisance for there be a remedy by  indictment to redress it so here the plaintiff have a remedy in parliament as  to the case of Westbury against Powell   light a where the inhabitant of  Southwark have a water place for their cattle by custom which be stop up there  any inhabitant may have a action because there be no other remedy by  presentment or the like but if it have be a nuisance presentable noVide ante  and the book there cite a action will have lie so in the case of sterling and  turner the party have no other remedy so in the case of herring and finch  which be a strong case and I do not know whether a action will lie in that  case for refuse to admit his voice to the election of a mayor but there the  plaintiff have no other remedy nor other way to settle his right if we shall  adjudge that this action lie it will be dangerous to execute any office of  this nature and will deter man from undertake public office which will be a  thing of ill consequence I be of opinion upon the whole matter that after a  determination in the parliament for the plaintiff right the trouble and charge  of vindicate it will maintain a action but in this case no action lie and  therefore the judgement ought to be arrest Lord Raymond er p Lord Raymond holt  chief justice the single question in this case be whether if a free burgess of  a corporation who have a undoubted right to give his vote in the election of a  burgess to serve in parliament be refuse and hinder to give it by the officer  if a action on the case will lie against such officer I be of opinion that  judgement ought to be give in this case for the plaintiff my brother differ  from I in opinion and they all differ from one another in the reason of their  opinion but notwithstanding their opinion I think the plaintiff ought to  recover and that this action be well maintainable and ought to lie I will  consider their reason my brother gold think no action will lie against the  defendant because as he say be be a judge my brother powys indeed say be be no  judge but quasi a judge but my brother Powell be of opinion that the defendant  neither be a judge nor any thing like a judge and that be true for the  defendant be only a officer to execute the precept I e only to give notice to  the elector of the time and place of election and to assemble they together in  order to elect and upon the conclusion to cast up the poll and declare which  candidate have the majority but to proceed I will do these two thing first I  will maintain that the plaintiff have a right and privilege to give his vote  second in consequence thereof that if he be hinder in the enjoyment or  exercise of that right the law give he a action against the disturber and that  this be the proper action give by the law I do not at first think it will be  any difficulty to prove that the plaintiff have a right to vote nor necessary  to maintain it but from what my brother have say in their argument I find it  will be necessary to prove it it be not to be doubt but that the commons of  England have a great and considerable right in the government and a share in  the legislative without who no law passes but because of their vast number  this right be not exerciseable by they in their proper person and therefore b  that the constitution of England it have be direct that it shall be exercise  by representative choose by and out of themselves who have the whole right of  all the commons of England vest in they and this representation be exercise in  three different quality either as knight of shire citizen of city or burgess  of borough and these be the person qualify to represent all the commons of  England the election of knight belong to the freeholder of the county and it  be a original right vest in and inseparable from the freehold and can no more  be sever from their freehold than the freehold itself can be take away before  the statute of h c any man that bad a freehold though never so small have a  right of vote but by that statute the right of election be confine to such  person as have land or tenement Lord Raymond to the yearly value of forty  shilling at least because as the statute say of the tumult and disorder which  happen at election by the excessive and outrageous number of elector but still  the right of election be as a original right incident to and inseparable from  the freehold as for citizen and burgess they depend on the same right as the  knight of shire and differ only as to the tenure but the right and manner of  their election be on the same foundation now borough be of two sort first  where the elector give their voice by reason of their burgership or second by  reason of their be member of the corporation Littleton in his chapter of  tenure in burgage c l b say tenure in burgage be where a ancient borough be of  the which the king be lord of who the tenant hold by certain rend and it be  but a tenure in socage and sect he say and it be to wit that the ancient town  call borough be the most ancient town that be within England land be call  borough because of they come the burgess to parliament so that the tenure of  burgage be from the antiquity and their tenure in socage be the reason of  their estate and the right of election be annex to their estate so that it be  part of the constitution of en gland that these borough shall elect member to  serve in parliament whether they be borough corporate or not corporate and in  that case the right of election be a privilege annex to the burgage land and  be as I may proper call it a real privilege but the second sort be where a  corporation be create by charter or by prescription and the member of the  corporation as such choose burgess to serve in parliament the first sort have  a right of choose burgess as a real right but here in this last case it be a  personal right and not a real one and be exercise in such manner as the  charter or custom prescribe and the inheritance of this right or the right of  election itself be in the Lord Raymond er p whole body politic but the  exercise and enjoyment of this right be in the particular member and when this  right of election be grant within time of memory it be a franchise that can be  give only to a corporation as be resolve by all the judge against my Lord  Hobart in the case of dungannon in Ireland   that if the king grant to the  inhabitant of Islington to be a free borough and that the burgess of the same  town may elect two burgess to serve in parliament that vide   Litt a a such a  grant of such privilege to burgess not incorporate be void for the inhabitant  have not capacity to take a inheritance see hob the principal case there be  the king constitute the town of dungannon to be a free borough and that the  inhabitant thereof shall be a body politic and corporate consist of one  provost twelve Lord Raymond free burgess and commonalty and in the same name  may sue and be sue et quod Self a saying beforehand overseer et unconstrained  citizen castle prediction et successor Himself in continuous to have full  power et origination to pluck out to cause to go et retornandi duos to  separate et fit a potent juice ad inserviend et to stretch toward in  whithersoever you please parliament in speech royal power our men Scotland in  descendants to hold and so proceed to give they power to treat and give voice  in parliament as other burgess of any other ancient borough either in Ireland  or England have use to do and upon this grant it be adjudge by all the judge  of England that this power to elect burgess be a inheritance of which the  provost and burgess be not capable for that it ought to be vest in the entire  corporation videlicet provost burgess and commonalty and that therefore the  law in this case do vest that privilege in the whole corporation in point of  interest though the execution of it be commit to some person member of the  same corporation   hob as to the manner of election every borough subsist on  its own foundation and where this privilege of election be use by particular  person it be a particular right vest in every particular man for if we  consider the matter it will appear that the particular member and elector  their person their estate and their liberty be concern in the law that be make  and they be represent as particular person and not quatenus a body politic  therefore when their particular right and property be to be bind which be much  more valuable perhaps than those of the corporation by the act of the  representative he ought to represent the private person and this be evident  from all the writ which be ancient issue for levy the wage of the knight and  burgess that serve in parliament as Edward rot parliament Memb in back for  when wage be pay to the member they be not assess upon the corporation but  upon the commonalty as private person as the writ show which indeed be direct  to the sheriff or to the mayor c yet the command be quod de partnership  comitatus community well castle to have to make soldier fellow citizen or  citizen pro expenditure nest but now if the corporation be only to be  represent and not the particular member of it then the corporation only ought  to be at the charge but it be plain that the particular member be at the  charge and this be no new thing but agreeable to reason and the rule of law  that a franchise shall be vest in the corporation aggregate and yet the  benefit of it to redound to the particular member and to be enjoy by they in  their private capacity as be the case of Waller and hanger more where the king  grant to the mayor and citizen of London quod no one prisagia to be to loosen  de wine a citizen et liberor man de London c and there it be resolve that  although the grant be to the corporation yet it shall not enure to the Lord  Raymond body politic of the city but to the particular person of the  corporation who shall have the fruit and execution of the grant for their  private wine and it shall not extend to the wine belong to the body politic  and so be the constant experience at this day so in case of Mellor v spateman  sand where the corporation of Derby claim common by prescription and though  the inheritance of the common be in the body politic yet the particular member  enjoy the fruit and benefit of it and put in their own cattle to feed on the  common and not the cattle belong to the corporation but that be not indeed our  case but from hence it appear that every man that be to give his vote on the  election of member to serve in parliament have a several and particular right  in his private capacity as a citizen or burgess and sure it can be say that  this be so inconsiderable a right as to apply that maxim to it de least non  curate law a right that a man have to give Lord Raymond er p his vote at the  election of a person to represent he in parliament there to concur to the make  of law which be to bind his liberty and property be a most transcendent thing  and of a high nature and the law take notice of it as such in diverse statute  as in the statute of h c entitle a Act for make of knight and burgess within  the county and city of Chester where in the preamble it be say that whereas  the say county palatine of Chester be and have be always hitherto exempt  exclude and separate out and from the king court by reason whereof the say  inhabitant have hitherto sustain manifold disherison loss and damage as well  in their land good and body as in the good civil and politic governance and  maintenance of the commonwealth of their say county c so that the opinion of  the parliament be that the want of this privilege occasion great loss and  damage and the same far appear from the car c a Act to enable the county  palatine of Durham to send knight and burgess to serve in parliament which  recite whereas the inhabitant of the county palatine of Durham have not  hitherto have the liberty and privilege of elect and send any knight and  burgess to the high court of parliament c the right of vote at the election of  burgess be a thing of the high importance and so great a privilege that it be  a great injury to deprive the plaintiff of it these reason have satisfy I as  to the first point if the plaintiff have a right he must of necessity have a  mean to vindicate and maintain it and a remedy if he be injure in the exercise  or enjoyment of it and indeed it be a vain thing to imagine a right without a  remedy for d send for   b vide post a want of right and want of remedy be  reciprocal as if a purchaser of a advowson in feesimple before any presentment  suffer a usurpation and six month to pass without bring his quare hinder heSed  nunc vide Ann c b have lose his right to the advowson because he have lose his  quare hinder which be Lord Raymond his only remedy for he vide h Bl Litt S    Litt a a can not maintain a right of advowson and though he afterward usurp  and die and the advowson descend to his heir yet vide   b the heir can be  remit but the advowson be lose for ever without recovery   where a man have  but one remedy to come at his right if he lose that he lose his right it will  look very strange when the commons of England be so fond of their right of  send representative to parliament that it shall be in the power of a sheriff  or other officer to deprive they of that right and yet that they shall have no  remedy it be a thing to be admire at by all mankind suppose then that the  plaintiff have a right of vote and so it appear on the record and the  defendant have exclude he from it no body can say that the defendant have do  well then he must have do ill for he have deprive the plaintiff of his right  so that the plaintiff have a right to vote and the defendant have hinder he of  it it be a injury to the plaintiff where a new Act of parliament be make for  the benefit of the subject if a man be hinder from the enjoyment of it he  shall have a action against such person who so obstruct he how else come a  action to be maintainable by the party on the statute of Richard de temptation  to sin great man   but in consequence of law for the statute be make for the  preservation of the public peace and that be the reason that no writ of error  lie in the exchequer Chamber by force of the statute of Elizabeth n a  judgement in the king bench on a action de temptation to sin for it be not  include within the word of the statute for though the statute say such writ  shall lie upon judgement in action on the case yet it do not extend to that  action although it be a action on the case because vide Bl Com c it be a  action of a far high degree be find special upon a statute cro if then when a  statute give a right the party shall have a action for the infringement of it  be it not as forcible when a man have his right by the commonlaw this right of  vote be a right in the plaintiff by the commonlaw and consequent he shall  maintain a action for the obstruction of it but there want not a statute too  in this case for by west Edward c it be enact that for as much as election  ought to be free the king forbid upon grievous forfeiture that any great man  or other by power of arm or by malice or menace shall disturb to make free  election Inst and this statute as my Lord coke observe be only a enforcement  of the commonlaw and if the parliament think the freedom of election to be a  matter of that consequence as to give their sanction to it and to enact that  they shall be free it be Lord Raymond er p a violation of that statute to  disturb the plaintiff in this case in give his vote at a election and  consequent actionable Lord Raymond and I be of opinion that this action on the  case be a proper action my brother Powell indeed think that a action upon the  case be not maintainable because here be no hurt or damage to the plaintiff  but sure every injury import a damage though it do not cost the party one  farthing and it be impossible to prove the contrary for a damage be not mere  pecuniary but a injury import a damage when a man be thereby hinder of his  right as in a action for slanderous word though a man do not lose a penny by  reason of the speak they yet he shall have a action so if a man give another a  cuff on the ear though it cost he nothing no not so much as a little diachylon  yet he shall have his action for it be a personal injury so a man shall have a  action against another for ride over his I ground though it do he no damage  for it be a invasion of his property and the other have no right to come there  and in these case the action be bring way et arms but for invasion of another  franchise trespass way et arms do not lie but a action of trespass on the case  as where a man have to turn in a lathe narrow places he shall have a action  against any one who enter and invade his franchise though he lose nothing by  it so here in the principal case the plaintiff be obstruct of his flight and  shall therefore have his action and it be no objection to say that it will  occasion multiplicity of action for if man will multiply injury action must be  multiply too for every man that be injure ought to have his recompense suppose  the defendant have beat forty or fifty man the damage do to each one be  peculiar to himself and he shall have his action so if many person receive a  private injury by a public nuisance every one shall have his action as be  agree in William case   a and Westbury and Powell   light a indeed where many  man be offend by one particular act there they must proceed by way of  indictment and not of action for in that case the law will not multiply action  but it be otherwise when one man only be offend by that act he shall have his  action as if a man dig a pit in a common every commoner shall have a action on  the case per quod fortify strongly svan in tam opportunity modus to have non  to be able for every commoner have a several right but it will be otherwise if  a man dig a pit in a highway every passenger shall not bring his action but  the vide ante a party shall be punish by indictment because the injury be  general and common to all that pass but when the injury be particular and  peculiar to every man each man shall have his action in the case of turner  against sterling the plaintiff be not elect he can not give in evidence the  loss of his place as a damage for he be never in it but the gist of the action  be that the plaintiff have a right to stand for the place and it be difficult  to determine Lord Raymond who have the majority he have therefore a right to  demand a poll and the defendant by deny it be liable to a action if public  officer will infringe man right they ought to pay great damage than other man  to deter and binder other officer from the like offence so the case of hunt  and Dowman cro where a action on the case be bring by he in reversion against  lessee for year for refuse to let he enter into the house to see whether any  waste be commit in that case the action be not find on the damage for it do  not appear that any waste be do but because the plaintiff be hinder in the  enjoyment of his right and sure no other reason for the action can be suppose  but in the principal case my brother say we can judge of this matter because  it be a parliamentary thing by all mean be very tender of that beside it be  intricate and there may be contrariety of opinion but this matter can never  come in question in parliament for it be agree that the person for who the  plaintiff vote be elect so that the action be bring for be deprive of his vote  and if it be carry for the other candidate against who he vote his damage will  be less to allow this action will make public officer more careful to observe  the constitution of city and borough and not to be so partial as they common  be in all election which be indeed a great and grow mischief and tend to the  prejudice of the peace of the nation but they say that this be a matter out of  our jurisdiction and we ought not to inlargeit I agree we ought not to  encroach or enlarge our jurisdiction by so do we usurp both on the right of  the queen and the people but sure we may determine on a charter grant by Lord  Raymond er p the king or on a matter of custom or prescription when it come  before we without encroach on the parliament and if it be a matter within our  jurisdiction we be bind by our oath to judge of it this be a matter of  property determinable before we be ever such a petition hear of in parliament  as that a man be hinder of give his vote and pray they to give he remedy the  parliament undoubted will say take your remedy at law it be not like the case  of determine the right of election between the candidate my brother Powell say  that the plain tiffs right of vote ought first to have be determine in  parliament and to that purpose cite the opinion of my Lord Hobart that the  patron may bring his action upon the case against the ordinary after a  judgement for he in a quare hinder but not before it be indeed a fine opinion  but I do not know whether it will bear debate and how it will prove when it  come to be handle for at commonlaw the patron have no remedy for damage Lord  Raymond against the disturber but the statute Edward saint c S give he damage  but if he will not make the bishop a party to the suit he have lose his remedy  which the statute give he but in our case the plaintiff have no opportunity to  have remedy elsewhere my brother powys have cite the opinion of Littleton on  the statute of Merton that no action lie upon the word si parent to complain  because none have ever be bring yet he can depend upon it indeed that be a  argument when it be find upon reason but it be none when it be against reason  but I will consider the opinion some question bad arise on the pen of that  statute on those word si parent to complain c what be the meaning of they  whether they mean a complaint in a court in a judicial manner but it vide Litt  S a be plain the word to complain mean only si parent to wail that be only a  complaint in pais and not in a court for the guardian in socage shall enter in  that case and shall have a special writ de ejection watch land et heir but  this say have no great force if it bad it will have be destructive of many new  action which be at this day hold to be good law the case of hunt and Dowman  before mention be the first action of that nature but it be ground on the  common reason and the ancient justice of the law so the case of turner and  sterling let we consider wherein the law consist and we shall find it to be  not in particular instance and precedent but on the reason of the law and  where eaden ratio where idem law this privilege of vote do not differ from any  other franchise whatsoever if the house of Commons do determine this matter it  be not that they have a original right but as incident to election but we do  not deny they their right of examine election but we must not be fright when a  matter of property come before we by say it belong to the parliament we must  exert the queen jurisdiction my opinion be find on the law of England the case  of mors and slay Ventr be the first action of that nature but the novelty of  it be no objection to it so the case of smith and crashaw cro W Jones that a  action of the case lie for false and malicious indict the plaintiff for  treason though the objection be strong against it yet it be adjudge that if  the prosecution be without probable cause there be as much reason the action  shall be maintain as in other case so car c b between bodily and long it be  adjudge by Bridgman chief justice c that a action on the case lie for a ride  whenever the plaintiff and his wife fight for it be a scandalous and  reproachful thing so in the case of herring and finch lev no body scruple but  that the action well lie for the plaintiff be thereby deprive of his right and  if a action be maintainable against a officer for hinder the plaintiff from  Lord Raymond vote for a mayor of a corporation who can bind he in his liberty  nor estate to say that yet this action will not lie in our case for hinder the  plaintiff to vote at a election of his representative in parliament be  inconsistent therefore my opinion be that the plaintiff ought to have  judgement Friday the that of January this vide bro parliament Cas a judgement  be reverse in the house of lord and judgement give for the plaintiff by fifty  lord against sixteen Trevor chief justice and baron price be of opinion with  the three judge of the king bench ware c b and bury and smith baron be of  opinion with the Lord chief justice holt Tracy to waver in opinion Nevil and  blencowe absent Lord Raymond er p note I have it from good hand that Tracy  agree clear that the action lie but be doubtful upon the manner of lie the  declaration upon the argument of this case holt chief justice say the  plaintiff have a particular right vest in he to vote be it not then a wrong  and a injury to that right to refuse to receive his vote so if a borough have  a right of common and the freeman be hinder from enjoy it by enclosure or the  like every freeman may maintain his action this action be bring by the  plaintiff for the infringement of his franchise you will have nothing to be a  damage but what be pecuniary and a damage to property if a man have to turn in  a lathe narrow places although no fee be due to he at commonlaw yet if the  sheriff enter within his liberty and execute process there it be a invasion of  his franchise and he may bring his action and there be the same reason in this  case although this matter relate to the parliament yet it be a injury  precedaneous to the parliament as my Lord hale say in the case of bernardiston  vers soam lev the parliament can judge of this injury nor give damage to the  plaintiff for it they can make he a recompense let all people come in and vote  fair it be to support one or the other party to deny any man vote by my  consent if such a action come to be try before I I will direct the jury to  make he pay well for it it be deny he his English right and if this action be  not allow a man may be for ever deprive of it it be a great privilege to  choose such person as be to bind a man life and property by the law they make  Lord Raymond post Mr do you pray a mandamus to restore the clerk of the  butcher company which be a company by charter holt chief justice such  mandamuss have be grant but I think they have go too far in these case I be of  opinion that no mandamus ought to be grant where the officer may have a assize  therefore hear counsel of both side a mandamus be afterward grant