ELECTION. This term, in its most usual acceptation, signifies the choice
which several persons collectively make of a person to fill an office or
place. In another sense, it means the choice which is made by a person
having the right, of selecting one of two alternative contracts or rights.
Elections, then, are of men or things.
2.-1. Of men. These are either public elections, or elections by
companies or corporations.
3.-1. Public elections. These should be free and uninfluenced either
by hope or fear. They are, therefore, generally made by ballot, except those
by persons in their representative capacities, which are viva voce. And to
render this freedom as perfect as possible, electors are generally exempted
from arrest in all cases, except treason, felony, or breach of the peace,
during their attendance on election, and in going to and returning from
them. And provisions are made by law, in several states, to prevent the
interference or appearance of the military on the election ground.
4. One of the cardinal principles on the subject of elections is, that
the person who receives a majority or plurality of votes is the person
elected. Generally a plurality of the votes of the electors present is
sufficient; but in some states a majority of all the votes is required. Each
elector has one vote.
5.-2. Elections by corporations or companies are made by the members,
in such a way its their respective constitutions or charters direct. It is
usual in these cases to vote a greater or lesser number of votes in
proportion as the voter has a greater or less amount of the stock of the
company or corporation, if such corporation or company be a pecuniary
institution. And the members are frequently permitted to vote by proxy. See
7 John. 287; 9 John. 147; 5 Cowen, 426; 7 Cowen, 153; 8 Cowen, 387; 6 Wend.
509; 1 Wend. 98.
6.-2. The election of things. 1. In contracts, when a; debtor is
obliged, in an alternative obligation, to do one of two things, as to pay
one hundred dollars or deliver one hundred bushels of wheat, he has the
choice to do the one or the other, until the time of payment; he has not the
choice, however, to pay a part in each. Poth. Obl. part 2, c. 3, art. 6, No.
247; 11 John. 59. Or, if a man sell or agree to deliver one of two articles,
as a horse or an ox, he has the election till the time of delivery; it being
a rule that "in case an election be given of two several things, always be,
which is the first agent, and which ought to do the first act, shall have
the election." Co. Litt. 145, a; 7 John. 465; 2 Bibb, R. 171. On the failure
of the person who has the right to make his election in proper time, the
right passes to the opposite party. Co. Litt. 145, a; Viner, Abr. Election,
B, C; Poth. Obl. No. 247; Bac. Ab. h.t. B; 1 Desaus. 460; Hopk. R. 337. It
is a maxim of law, that an election once made and pleaded, the party is
concluded, electio semel facta, et placitum testatum, non patitur regressum.
Co. Litt. 146; 11 John. 241.
7.-2. Courts of equity have adopted the principle, that a person shall
not be permitted to claim under any instrument, whether it be a deed or
will, without giving full effect to it, in every respect, so far as such
person is concerned. This doctrine is called into exercise when a testator
gives what does not belong to him, but to some other person, and gives, to
that person some estate of his own; by virtue of which gift a condition is
implied, either that he shall part with his own estate or shall not take the
bounty. 9 Ves. 515; 10 Ves. 609; 13 Ves. 220. In such a case, equity will
not allow the first legatee to, insist upon that by which he would deprive
another legatee under the same will of the benefit to which he would be
entitled, if the first legatee permitted the whole will to operate, and
therefore compels him to make his election between his right independent of
the will, and the benefit under it. This principle of equity does not give
the disappointed legatee the right to detain the thing itself, but gives a
right to compensation out of something else. 2 Rop. Leg. 378, c. 23, s. 1.
In order to impose upon a party, claiming under a will, the obligation of
making an election, the intention of the testator must be expressed, or
clearly implied in the will itself, in two respects; first, to dispose of
that which is not his own; and, secondly, that the person taking the benefit
under the will should, take under the condition of giving effect thereto. 6
Dow. P. C. 179; 13 Ves. 174; 15 Ves. 390; 1 Bro. C. C. 492; 3 Bro. C. C.
255; 3 P. Wms. 315; 1 Ves. jr. 172, 335; S. C. 2 Ves. jr. 367, 371; 3 Ves.
jr. 65; Amb. 433; 3 Bro. P. C. by Toml. 277; 1 B. & Beat. 1; 1 McClel. R.
424, 489, 541. See, generally, on this doctrine, Roper's Legacies, c. 23;
and the learned notes of Mr. Swanston to the case Dillon v. Parker, 1
Swanst. R. 394, 408; Com. Dig. Appendix, tit. Election; 3 Desaus. R. 504; 8
Leigh, R. 389; Jacob, R. 505; 1 Clark & Fin. 303; 1 Sim. R. 105; 13 Price,
R. 607; 1 McClel. R. 439; 1 Y. & C. 66; 2 Story, Eq. Jur. Sec. 1075 to 1135;
Domat, Lois Civ. liv. 4, tit. 2, Sec. 3, art. 3, 4, 5; Poth. Pand. lib. 30,
t. 1, n. 125; Inst. 2, 20, 4; Dig. 30, 1, 89, 7.
8. There are many other cases where a party may be compelled to make an
election, which it does not fall within the plan of this work to consider.
The reader will easily inform himself by examining the works above referred
to.
9.-3. The law frequently gives several forms of action to the injured
party, to enable him to recover his rights. To make a proper election of the
proper remedy is of great importance. To enable the practitioner to make the
best election, Mr. Chitty, in his valuable Treatise on Pleadings, p. 207, et
seq., has very ably examined the subject, and given rules for forming a
correct judgment; as his work is in the hands of every member of the
profession, a reference to it here is all that is deemed necessary to say on
this subject. See also, Hammond on Parties to Actions; Brown's Practical
Treatise on Actions at Law, in the 45th vol. of the Law Library; U. S. Dig.
Actions IV.
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