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were of opinion (the Lord Chief Justice Holt dissenting) that no action lay; and therefore ordered judgment to be entered for the defendants.

To reverse this judgment, the plaintiff brought a writ of error in parliament; insisting (F. Page), that he was thereby deprived both of his verdict and his costs; and that, by discountenancing this action, all sheriffs of counties, mayors of corporations, and constables of boroughs, whom the law hath intrusted with taking the poll at elections for members of parliament, would have it in their power to return whom they thought fit; presuming upon their indemnity, from this instance.

On the other side it was contended (T. Powys, C. Phipps), that, notwithstanding the many elections which had been controverted in every new parliament, no such action as the present had ever been brought; which clearly shewed it to have been the constant opinion of lawyers, and others, in all ages, that such an action would not lie. That several acts of parliament had been made to give remedy by action in Westminster-Hall, in some particular cases of elections; and this proved, that there was no remedy at common law in those courts. That there never were but three actions upon the case, brought by candidates for false returns: viz. Neville's case, in the late troublesome times; and Sir Samuel Barnardiston's case, and Onslow's case, in the reign of King Charles II. and in all these cases, the defendants prevailed upon the point of law, viz. that such action would not lie. And if such action does not lie for the elected, much less will it lie for the elector; for, to support every action upon the case, there must be damage in præsenti, or a possibility of damage in futuro, but which there could not be in this case, unless it was presumed, that, contrary to the act of parliament, the plaintiff was to have money for his vote. That if there was damnum, yet it could not be pretended, there was injuria; and damnum absque injuria, was not sufficient to support an action upon the case. That this was not to be compared to other cases, where the party hath no remedy but in Westminster-Hall; for here the plaintiff hath a remedy, by applying to the House of Commons; it being usual for electors, who think themselves aggrieved by chief magistrates in an election, to apply to that House, although the election itself may not be contested by the candidates. And that, an all parliamentary causes are to be [64] determined in parliament, it was conceived, that this matter was properly determinable in the House of Commons only; and that the courts of Westminster-Hall not being authorized by any act of parliament, had no cognizance of it.

After hearing counsel on this writ of error, a debate ensued; and the question being put, Whether this judgment should be reversed? it was resolved in the affirmative. Dissentient, The Lords Rochester, Northampton, Scarsdale, Weymouth, Granville, Gower, Abingdon, Guernsey, and Guildford; and the Bishops of Rochester, Chester, St. Asaph, and London. It was therefore ordered and adjudged, that the said judgment should be reversed, and that the plaintiff should recover his damages assessed by the jury; and also, the further sum of 10l. for his costs, in this behalf sustained.^[1] (Jour, vol. 17. p. 369.)