Ashby v. White is an eighteenth-century voting rights case wherein, Mr. Ashby was denied
the right to vote in an election due to the misdeeds of a constable, Mr. White, who claimed
that he was not a permanent resident. There was no harm done to Mr. Ashby and the
candidate to whom Ashby wanted to vote for, also won the elections. On the basis of
infringement of legal rights Mr. Ashby filed a suit against Mr. White. The issue sparked
widespread national interest and parliamentary debate at that time. Further, the case was
known as the Aylesbury election case later on.
In this particular case, two major issues can be drawn which are:
Firstly, the question is whether one party can sue if one of its civil rights is violated by
another party’s actions.
Secondly can there be legal injury without damages?
RELEVANT RULE OF LAW:
“The law of torts is fashioned as, an instrument for making people adhere to standards
of reasonable behaviour and respect the rights and interests of one another”.1
“The two maxims, injuria sine damno and damnum sine (or absque) injuria, demonstrate
the true significance of legal injury.
By damnum it means damage in the substantial sense of money, loss of comfort,
service, health, or the like.
By injuria is meant a tortious act; it need not be wilful and malicious; for though it be
accidental, if it be tortious, an action will lie. Any unauthorized interference,
however trivial, with some absolute right conferred by law on a person, is an injury.”2
Sine means without.
“The first maxim we are dealing with in this case is Injuria sine damno, i.e., the
infringement of an absolute private right without any actual loss or damage, the person
whose right is infringed has a cause of action.” 3 Even if the injury has not yet occurred, the
statute allows a person who is threatened with the infringement of a legal right to file a
complaint under the principles of the Specific Relief Act under Declaration and Injunction.
The second maxim we are dealing with in this case is “Ubi jus ibi remedium, i.e., where
there is a right, there is a remedy. The law of tort is said to be the development of the
maxim Ubi jus ibi remedium.”4 The term “jus” refers to the legal authority to do or demand
anything. The term “remedium” refers to a person’s legal right to sue in a court of law.
Firstly, we encounter the question is whether one party can sue if one of its civil rights is
violated by another party’s actions?
This case attracted debates in parliament and considerable national interest. The suit was filed
by the plaintiff and heard in the Court of King’s Bench wherein the opinion of Powell, Powys
and Gould, Justices was against plaintiff. But Chief Justice Holt was of opinion for the
Gould and Powys Justices was of the opinion that the judgement ought to be given in this
case for defendant. “They were of the opinion that this action is not maintainable based on
the following reasons: first, because the defendants are judges of the thing, and act herein as
judges: secondly, because it is a Parliamentary matter, with which we have nothing to do:
thirdly, the Plaintiff ‘s privilege of voting is not a matter of property or profit, so that the
hindrance of it is merely damnum sine injuria.”5 According to Powys Justice, “even if it is to
be considered as an injury, then it is of so small and little consideration in the law, that no
action will lie for it and will be considered under the maxim, de minimis non curat lex i.e.,
law is not considered with small things.”6
However, Powell Justice didn’t agree with the opinion of Gould and Powys Justice that the
defendant is a judge. But he concurs with their other reason for dismissing the plaintiff’s
claim, most notably because there does not appear to be any loss or damage in this case to
justify continuing the lawsuit.
Lord Holt CJ was dissenting from the court of king’s bench decision. He was of the opinion
that judgement ought to be given in this case for the plaintiff. Holt justice based his
arguments on two foundations i.e. He maintained, first, that the plaintiff had the right and
privilege to vote, and, second, that if he is prevented from enjoying or exercising that right,
the law provides him with a remedy against the disturber, and that this is the correct remedy
provided by the law. Referring the case of “Mellor v. Spateman, 1 Saund. 343”7
, he said
that every man in his private status as a citizen or burgess, has a several and specific right to
vote on the election of members to serve in Parliament. Justice Holt also stated that the
person for whom the people are going to vote will represent the interest of Commons of
England, accord to the making of law and will bind their property and liberty which is
considered of high nature. Justifying his reasoning he stated that “If the plaintiff has a right,
he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured
in the exercise or enjoyment of it, and, indeed it is a vain thing to imagine a right without a
remedy; for want of right and want of remedy are reciprocal…”8 Further, Disagreeing to the
justification given by other justices, Holt stated that it is no objection to suggest that it will
result in a multitude of actions; for if men multiply injuries, actions must be multiplied as
well; for every injured man should be compensated. Referring to the “William’s case, if
many persons receive a private injury by a public nuisance, every one shall have his action.”
9When a large number of men are involved, an indictment is required. However, if the injury
is specific, one must take action.
Considering all the above arguments the second maxim from the rule of law comes into play
i.e., “ubi jus ibi remedium”. The essentials of which are as follows –
“The maxim ubi jus ibi remedium can be applied only where the right exists and that
right should be recognized by the court of law;
A wrongful act must have been done which violates the legal rights of a person
This maxim is applicable if any legal injury had been caused to any person.”10
Considering the essentials of Ubi jus ibi remedium and Lord Holt Justification, we can say
that Mr Ashby had the right to vote at an election for the members of parliament and
defendant by refraining him clearly committed a wrongful act which led to violation of legal
rights of Mr. Ashby. And “ action is maintainable because every injury imports a damage,
where a man is thereby hindered of his right.”11
Secondly, we encounter the question that can there be legal injury without damages?
“Damage” refers to the hurt or loss a person has received or is expected to suffer as a result
of another’s wrongful act. Further, “Damages” refers to the amount of money granted by a
court to compensate for “damage.”
So basically, Damages are classified into two rights, that is, absolute and qualified. The
one which we are dealing with in this case is violation of an absolute right, which states
that the “law presumes damages although the person wronged may have suffered no
pecuniary loss whatsoever.”12
As stated by Justice Lord Holt “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
In this particular case the plaintiff was a registered voter in the parliamentary
elections that took place at the time. The plaintiff’s vote was unlawfully disallowed by the
defendant, a returning officer. Despite the fact that the plaintiff suffered no harm because the
candidate for whom he chose to vote had already won the elections, still the defendants were
held accountable. It was determined that harm is not only monetary, but also includes injury,
and that when a man’s rights are violated, he is entitled to compensation.
Taking into consideration both the maxims and the arguments by the justices we can say that
every person has an absolute right to his or her property, personal immunity, and liberty, and
any infringement of this right is subject to punishment. The returning officer had acted
maliciously in this case. If a person who is entitled to be on the electoral roll is wrongly
omitted from that roll, he suffers a legal wrong for which an action might be brought. Further,
when a citizen’s right to vote is taken away by an unlawful statute that violates the right to
equality, a lawsuit for damages will be filed.
In other words, we can say that Defendant’s act of restraining the plaintiff led to legal
injury and civil wrong. As a result, the plaintiff has the legal right to seek redress in a
court of law.
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
If you are interested in participating in the same, do let me know.
The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.
If you would also like to contribute to my website, then do share your articles or poems at email@example.com