EJUSDEM GENERIS. Of the same kind.
2. In the construction of laws, wills and other instruments, when certain things are enumerated1, and then a phrase is used which might be construed2 to include other things, it is generally confined to things ejusdem generas; as, where an act provided that a writ4 of quo warranto might issue against persons who should usurp5 "the offices of mayors, bailiffs, port reeves, and other offices, within the cities, towns, corporate6 boroughs7, and places, within Great Britain," &c.; it was held that "other offices" meant offices ejusdem generis; and that the word "places" signified places of the same kind; that is, that the offices must be corporate offices, and the places must be corporate Places. 5 T. R. 375,379; 5 B . & C. 640; 8 D. & Ry. 393; 1 B. & C. 237.
3. So, in the construction of wills, when certain articles are enumerated, the terra goods is to be restricted to those ejusdem generis. Bac. Ab. Legacies8, B; 3 Rand. 191; 3 Atk. 61; Abr. Eq. 201; 2 Atk. 113.
ELDEST9. He or she who has the greatest age.
2. The laws of primogeniture are not in force in the United States; the eldest child of a family cannot, therefore, claim any right in consequence of being the eldest.
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 ballot10, except those by persons in their representative capacities, which are viva voce. And to render this freedom as perfect as possible, electors are generally exempted11 from arrest in all cases, except treason, felony, or breach12 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 cardinal13 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 lesser14 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 pecuniary15 institution. And the members are frequently permitted to vote by proxy16. 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; debtor17 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; ll 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 maxim18 of law, that an election once made and pleaded, the party is concluded, electio semel facta, et placitum testatum, non patitur regress-um. Co. Litt. 146; 11 John. 241.
7.-2. Courts of equity19 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 doctrine20 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 virtue21 of which gift a condition is implied, either that he shall part with his own estate or shall not take the bounty22. 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 permited 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, secondly23, 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 & Fin3. 303; 1 Sim. R. 105; 13 Price, R. 607; 1 McClel. R. 439; 1 Y. & C. 66; 2 Story, Eq. Jur. §1075 to 1135; Domat, Lois Civ. liv. 4, tit. 2, §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 practitioner24 to make the best election, Mr. Chitty, in his valuable Treatise25 on Pleadings, p. 207, et seq., has very ably examined the subject, and given rules for forming a correct judgment26; 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.
