Ashby v White
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1794 |
| Date | 01 January 1794 |
| Court | High Court |
English Reports Citation: 87 E.R. 808
IN THE COURT OF KING'S BENCH, CHANCERY, COMMON PLEAS, EXCHEQUER.
See S. C. 2 Ld. Raym. 938(with note).
case 65. ashby against white. A person who has a right to vote for the election of members to serve in Parliament, may maintain an action against the sheriff or other officer who takes the poll, for refusing to admit his vote, although the right of such elector to vote was never determined in Parliament, and although the candidate for whom he tendered his vote, was returned duly elected by the officer who refused the vote.-S. C. 1 Salk. 19. S. C. 3 Salk. 17. S. C. 8 St. Tr. 89. S. C. Holt, 524. S. C. 1 Brown, P. C. 45. S. C. Eay. But 320. S. C. 2 Ld. Ray. 938. In an action on the case, the plaintiff declared, that on such a day in December, in the twelfth year of the late King, there issued a writ to the Sheriff of Bucks for the election of members of Parliament in his county ; that the said writ was delivered to the said sheriff; whereupon the sheriff made his warrant to the constable of Ailesbury, to choose two burgesses for that borough, which warrant was delivered to the said constable : that in pursuance thereof the burgesses were duly assembled to choose, &c.; that the plaintiff being then duly qualified to give his voice for the election of two burgessea before the said White, he was ready to give his voice for Lee and Mayne to be burgesses of Parliament for the said borough ; and that the defendant, knowing the premises, with malice, &c. did obstruct him from giving hia voice, and did refuse it, and not allow or receive it, and that two burgesses were chose without allowing or receiving his voice. Verdict for the plaintiff. And now the Court argued seriatim, three Judges against the plaintiff, and Holt, Chief Justice, tolis veribus for him. [46] Gould, Puisne Justice, against plaintiff, for four reasons : First, the constable in this case is to judge who shall vote or not, and as such is not liable to actions : a sheriff shall not be liable to an action for taking insufficient bail, because he is judge of their sufficiency (a). An action for taking bail, having nothing in the county, does not lie(i). In an action of escape upon process, the defendant pleads, that he let him go upon sufficient bail, and it was held that the suffieieucy of the bail is not traversable. In the case of Hammond v. Howell (d), the jury were fined for a verdict against evidence, and held ill: and in the Year-Book it is held, that (e) a Judge is not liable to an action for making up a false record. Secondly, this is a Parliamentary offence, with which we have nothing to do by way of action; for we cannot examine, whether the party refused has a right to vote, or not, for that properly belongs to the House of Commons to determine ; and suppose the question be, whether the right of voting be in a select number, or in the populace? and the defendant refuse the plaintiff for being of the populace ; and we judge him to have the right of voting, being of the populace, and upon that ground give judgment for the plaintiff, and after the right of election in that borough comes in question in Parliament, and there the right is adjudged to be in a select number; this will occasion a concurrency of independent jurisdictions, which will be wonderfully inconvenient. In the case of Dawson v. Sheriff of London (/), it is held, that even for a false return an action does not lie, for there are no precedents of any before the statute of Hen. 6, c. Thirdly, here is no profit present, or possibility of a future profit, so it is an injuria sine damna ; and damnum sine injurid, or, vice versa, will not bear an action, for both must necessarily concur to maintain the action ; for things must not only be done amiss, but it must redound to the prejudice of him that will bring his action (a) Metcalf v. Hodgson, Hutton, 120. (b) In the King's Bench, 21 Car. 2, Eoll 469. (d) 2 Mod. 219. (e) Year-Book 9 Hen. 6, pi. 6. (/) 2 Vent. 87. BBD.. MICHAELMAS TERM, 2 QUEEN ANNE. IN B. R. 811 for it (a). If a man forge a bond in my name, it is possible I may be damnified by it, but until it be put in suit against me, I cannot bring action against the forger (b). Fourthly, this relates to the Government, and is a kind of a popular offence, and for thai an action will not lie for it; for by the same reason that an action would lie for the plaintiff, it might lie for two hundred upon the same single question; and suppose we all should give judgment in so many actions against him, and after the matter ia decided otherwise in Parliament, what remedy has this poor officer? and the avoiding multiplicity of actions, is the reason of Williams' case (e). And Soulston's case in Ihe same book (d), actions lie not by any particular person against one that not being qualified builds a dove-cote, but is punishable in the leet; but I do not say but that after the right is determined in Parliament, it might be proper for an information (e). As to the reason that such action never has been, therefore it does not lie, 1 do not much depend upon it. In the case of Guntley v. Holmes (/), there is no remedy there for the party grieved but an action, but here is a remedy in Parliament. Besides these reasons, it is not alledged that any return [47] was made of the members chose without his consent or vote, and the action does not lie to be sure before the return (g), for until then the party has no damage. Powys, Justice, accord, for these reasons : First, the officer in this case, though not properly and strictly a judge, yet he is quasi a judge; for he has a distinguishing power who shall be admitted to vote, and who not; not indeed finally and conclusively, but at that time who to admit, and who to refuse; but all he does is abnoxious to a subsequent examination in Parliament. Secondly, if such an officer misbehave himself, in certain cases Acts of Parliament have already given, remedy; and this case may come incidently in question, and be determined upon such actions as the statutes have provided; and the statute giving remedy in one case, and being silent in all other cases, seems to expound the common law in this point. Thirdly, this would subject mayors and such officers to such an infinity of actions, as would not only min them, but also deter every body from exercising the like office ; for the heats in elections are so great, that the losing party would never fail of bringing every man his action, which the Court could not join in one, and so the poor officer would be undone; whereas the whole matter might be fairly determined by an action for a falie return by either candidate, according to the statute. Fourthly, there is such intricacy in elections, that scarce any two towns agree: in some boroughs, a select number has the government: in some, all that pay scot and lot: in some, pot-wallers, or house-keepers, &c. so that it would be hard to make an officer distinguish them at the peril of an action. It is objected, that by law every man that has an injury done him, ought to have a remedy therefor; and that it would be strange to tell an Englishman, that he has a wrong done him, and no redress for it. I answer, this is no wrong to him, for he does not lose his privilege of voting by it; for if an action be brought for a false return, or a petition be preferred to the House, if he has a right, the House will reckon his vote as much as if it had been received at the election (); and besides, if it be an injury, it may be one of those that come within the rule, de minimis non curat lex. Before the statute of 23 Hen. 6, c. 14, the party it cited had no remedy in case of false return; and before the statute of 7 and 8 Will. 3, c. 7, no action lay for a double return (c). (a) Year-Book 19 Hen. 6, c. 24. (b) Year-Book 6 Edw. 4, pi. 7. 19 Hen. 6, pi. 44, cited in the case of Wateris v. Freeman, Hob. 267. See also Fuller v. Young, 2 Bulst. 268. (e) 5 Co. 73. (d) 5 Co. 104. (e) See 2 Brownl. 194. Cro. Jac. 268, upon the same reason. (/) 2 Cro. See also Herring v. Finch, 2...
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Of Kings and Officers — The Judicial Development of Public Law
...was acting within jurisdiction.75 _____________________________________________________________________________________ 69 (1703) 6 Mod 45; 87 ER 810 (also 2 Ld Raym 938; 92 ER 126). 70 It has been suggested that Holt CJ also required malice as an element of the wrong: see NT v Mengel (1996......