CASE ANALYSIS: Ashby v White

Court of King’s Bench

NAME OF THE CASE Ashby v/s White

CITATION (1703) 92 ER 126, (1703) 2 Ld Raym 938, (1703) 1 Sm LC

(13th Edn) 253
DATE OF THE CASE 1 January 1703

APPELANT Mr. Matthew Ashby

RESPONDENT William White

BENCH/JUDGE Holt CJ, Powell J, Powy J, Gould J.

STATUTES/CONSTITUTION INVOLVED UK constitutional law and English tort law

STATUTES/CONSTITUTION INVOLVED Damnum Sine Injuria

 ABSTRACT
It is an infringement of a legal private right without any actual loss or damage. In such a case the person whose right has been infringed has a good cause of
action. It is not necessary for him to prove any special damage because every injury imports a damage when a man in hindered of his right. Every person
has an absolute right to property, to the immunity of his person, and to his liberty, and an infringement of this right is actionable per se. actual perceptible
damage is not, therefore, essential as the foundation of an action. It is sufficient to show the violation of a right in which case the law will presume damage.
Thus, in cases of assault, battery, false imprisonment, libel, trespass on land, etc., the mere wrongful act is actionable without proof of special damage. The
court is bound to award to the plaintiff at least nominal damages if no actual damage is proved. This principle was firmly established by the election case of
Ashby v. White, in which the plaintiff was wrongfully prevented from exercising his vote by the defendants, returning officers in parliamentary election. The
candidate from whom the plaintiff wanted to give his vote had come out successful in the election. Still the plaintiff brought an action claiming damages
against the defendants for maliciously preventing him from exercising his statutory right of voting in that election. The plaintiff was allowed damages by
Lord Holt saying that there was the infringement of a legal right vested in the plaintiff

INTRODUCTION
Ashby v. White, the eighteenth-century voting rights case, is said to have established the principle that for every right, there must be a remedy.
That principle, often rendered in portentous Latin—ubi jus, ibi remedium—has played an important role in Anglo-American legal rhetoric. Commentators
since Blackstone have argued that the ubi jus principle is fundamental to the rule of law. Marbury v. Madison applied the ubi jus principle when laying the
foundation of judicial review, and courts since have similarly relied on it in a variety of contexts. Some have even argued that the Due Process Clause
mandates adherence to ubi jus. As the supposed progenitor, Ashby v. White has been hailed as a centrally important case in the development of the Anglo-
American conception of remedial justice. But contrary to common misconception, Ashby v. White did not establish the principle that every right must have
a remedy. Although the historical record resists any easy characterization of the “holding” of Ashby, the ultimate resolution of the case implicitly rejected
the ubi jus principle. Both English and American courts of the time understood Ashby as holding that only some deprivations of rights resulted in judicially
enforceable remedies.

BACKGROUND
Mr. Ashby was prohibited from voting in an election by the mistake of the constable, Mr. White, under the obvious pretext that he was not a settled
inhabitant. At the time, the case attracted great public attention and discussion in Parliament. It was later known as the election case of Aylesbury. In the
House of Lords, it attracted the attention of Peter King, 1st Baron King, who spoke and upheld the right of electors to have recourse to common law for the
revocation of their votes, despite the insistence of the Conservative party on the rights of the House of Commons. Sir Thomas Powys defended William
White at the House of Lords. The argument put forward was that the Commons alone had the power to decide election cases, not the courts.

FACTS
In this case plaintiff was wrongfully prevented from exercise his vote by the defendant White, returning officer in parliamentary election. Plaintiff
Ashby wanted to give vote had come out successful in the election. But defendant returning officer prevented to do this there is no actual loss or damage
with Ashby but there is a legal loss. So, Ashby claiming damages against defendant. And plaintiff Ashby allowed for damage by Lord Holt saying that “there
is infringement a legal right.”

ISSUE
This question presents among the first issues grounded in civil rights.
* The issue of this case is whether one party may recover damages when one of his civil rights is hindered by the action of another.

ARGUMENTS FROM THE APPELANT SIDE

The plaintiff filed a petition with a plea that being a qualified voter his vote was not registered. Hence, he should get compensation from the
defendant.
Mr Ashby was prevented from voting at an election by the misfeasance of a constable, Mr White, on the apparent pretext that he was not a
settled inhabitant. A right that a man has to give his vote at the election of a person to represent him in Parliament, there to concur to the
making of laws, which are to bind his liberty and property, is a most transcendent thing, and of an high nature, and the law takes notice of it as
such in divers statutes: as in the statute of 34 & 35 H. 8, c. 13, intitled An Act for Making of Knights and Burgesses within the County and City of
Chester; where in the preamble it is said, that whereas the said County Palatine of Chester is and hath been always hitherto exempt, excluded,
and separated out, and from the King's Court, by reason whereof the said inhabitants have hitherto sustained manifold dispersions, losses, and
damages, as well in their lands, goods, and bodies, as in the good, civil, and politic governance, and maintenance of the commonwealth of
their said county, &c. So that the opinion of the Parliament is, that the want of this privilege occasions great loss and damage. And the same
farther appears from the 25 Car. 2, c. 9, an Act to enable the County Palatine of Durham to send knights and burgesses to serve in Parliament,
which recites, whereas the inhabitants of the County Palatine of Durham have not hitherto had the liberty and privilege of electing and
sending any knights and burgesses to the High Court of Parliament, &c. The right of voting at the election of burgesses is a thing of the highest
importance, and so great a privilege, that it is a great injury to deprive the plaintiff of it.
ARGUMENTS FROM THE RESPONDENT
The plea of the defendant was that the plaintiff’s non-registered vote was in the favour of the candidate who won the election and thus there is no damage
(injury) to him.

The argument submitted was that the Commons alone had the power to determine election cases, not the courts. hat an action upon the case is not
maintainable, because here is no hurt or damage to the plaintiff; but surely every injury imports a damage, though it does not cost the party one farthing,
and it is impossible to prove the contrary; for a damage is not merely pecuniary, but an injury imports a damage, when a man is thereby hindered of his
right. As in an action for slanderous words, though a man does not lose a penny by reason of the speaking them, yet he shall have an action. So, if a man
gives another a cuff on the ear, though it cost him nothing, no not so much as a little diachylon, yet he shall have his action, for it is a personal injury. So, a
man shall have an action against another for riding over his ground, though it does him no damage; for it is an invasion of his property, and the other has no
right to come there. And in these cases, the action is brought vi et armies. But for invasion of another's franchise, trespass vi et armies does not lie, but an
action of trespass on the case; as where a man has return brevium, he shall have an action against anyone who enters and invades his franchise, though he
loses nothing by it. So here in the principal case, the plaintiff is obstructed of his right, and shall therefore have his action. And it is no objection to say, that
it will occasion multiplicity of actions; for if men will multiply injuries, actions must be multiplied too; for every man that is injured ought to have his
recompense.

RELATED PROVISIONS

 Damnum sine injuria:

Actual damage suffered without legal injury Meaning Word by Word: Damnum: Loss or damage Sine: Without Injuria: Injury to Private Legal
Rights Explanation: The damage may be in form of money, service, physical hurt, loss of health or reputation and loss of comfort. According to
this maxim, these are mere damages without any violation of Legal Rights. The maxim refers to actual damage without violation of any Legal
Right. In such case, the mere fact of damage does not mean there is an injury i.e. violation of Legal Rights. There are many acts which are not
wrongful in the eyes of Law
  Injuria Sine Damno

Injuria Sine Damno is a legal maxim, which means that injury or loss or damage so caused to the plaintiff without suffering any physical injury
or damage. It is a Latin term, where ‘Injuria’ refers to injury ‘Sine’ refers to without and ‘Damno’ refers to a property or any physical loss,
therefore the term refers to ‘injury suffered without actual loss’. Here, in this case, the plaintiff doesn’t have to prove the damages so
suffered, he only has to prove that there is some legal damage suffered by him, that is the action so brought is actionable per se. Like for
example, where A roams around B’s house without any justification then, in that case, there is a violation of the legal right of B and therefore
this maxim is applicable.
JUDGEMENT

Court held that the vote tendered by the plaintiff was in the favour of the candidate who won the election. Thus, there is no actual
loss(damage) to the plaintiff but his Legal Right of voting was violated by the defendant. To disallow a qualified voter to register his vote was a
civil wrong and hence the plaintiff had the Right to have a remedy in the court of the law. The doctrine of injury sine damnum prevailed and
compensation was offered to the plaintiff.

CONCLUSION

Mr. Matthew Ashby, a cobbler, turned up to vote for the British Parliament in December 1701. Ashby was turned away by William White, the constable,
because “he was not a settled inhabitant of the borough, and had never contributed either to the church or the sick. Notwithstanding this, his opponent
won the race, and he was not hurt. Yet Ashby refused to take this lying down and sued for large damages. The defendants argued that because Ashby had
suffered no loss when his nominee won the race, he was not responsible. His suit was successful, but the House of Commons found Ashby guilty of a breach
of parliamentary privilege for having behaved in the common law. Chief Justice Holt then upheld Ashby ‘s appeal, stating that what was at issue was “the
most transcendental and high-quality matter.” Finally, it was held that the defendant (White) violated Ashby’s civil rights and was entitled to damages by
prohibiting the Complainant (Ashby) from voting. Chief Justice Holt said, “Any injury imports harm even if it does not cost the party one farthing. In the case
of damage not only pecuniary but also injury, damage is imported if a person is hampered in his or her rights.
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