ELECTION OF ACTIONS, practice. It is frequently at the choice of the plaintiff what kind of an action to bring; a skilful1 practitioner2 would naturally select that in which his client can most easily prove what is his interest in the matter affected3; may recover all his several demands against the defendant4; may preclude5 the defendant from availing himself of a defence, which be might otherwise establish; may most easily introduce his own evidence; may not be embarrassed by making too. many or too few persons parties to the suit; may try it in the county most convenient to himself; may demand bail6 where it is for the plaintiff s interest; may obtain a judgment7 with the least expense and delay; may entitle himself to costs; and may demand bail in error. 1 Chit. Pl. 207 to 214.
2. It may be laid down as a general rule, that when a statute8 prescribes a new remedy, the plaintiff has his election either to adopt such remedy, or proceed at common law. Such statutory remedy is cumulative9, unless the statute expressly, or by necessary implication takes away the Common law remedy. 1 S. & R. 32; 6 S. & R. 20; 5 John. 175; 10 John. 389; 16 John. 220; 1 Call, 243; 2 Greenl. 404; 5 Greenl. 38; 6 Harr. & John. 383; 4 Halst. 384; 3 Chit. Pr. 130.
ELECTION OF A DEVISE OR LEGACY10. It is an admitted principle, that a person shall not be permitted to claim under any instrument, whether it be a deed or a will, without giving full effect to it in every respect, so far as such person is concerned. When a testator, therefore, gives what belongs to another and not to him, and gives to the owner some estate of his own; this gift is under an implied condition, either that he shall part with his own estate, or not take the bounty11. 9 Ves. 615; 10 Ves. 609; 13 Ves. 220; 2 Ves. 697; 1 Suppl. to Ves. jr. 222; Id. 55; Id. 340. If, for example, a testator undertakes to dispose of an estate belonging to B, and devise to B other lands, or bequeath to him a legacy by the same will, B will not be permitted to keep his own estate, and enjoy at the same time the benefit of the devise or bequest12 made in his favor, but must elect whether he will part with his own estate, and accept the provisions in the will, or continue in possession of the former and reject the latter. See 2 Vern. 5.81; Forr. 176; 1 Swanst. 436, 447 1 Rro. C. C. 480; 2 Rawle, 168; 17 S. & R. 16 2 Gill, R. 182, 201; 1 Dev. Eq. R. 283; 3 Desaus. 346; 6 John. Ch. R. 33; Riley, Ch. R. 205; 1 Whart. 490; 5 Dana, 345; White s L. C. in Eq. *233.
2. The foundation of the equitable13 doctrine14 of election, is the intention, explicit15 or presumed, of the author of the instrument to which it is applied16, and such is the, import of the expression by which it is described as proceeding17, sometimes on a tacit, implied, or constructive18 condition, sometimes on equity19. See Cas. temp. Talb. 183; 2 Vern. 582; 2 Ves. 14; 1 Eden, R. 536; 1 Ves. 306. See, generally, 1 Swan. 380 to 408, 414, 425, 432, several very full notes.
3. As to what acts of acceptance or acquiescence20 will constitute an implied election, see 1 Swan. R. 381, n. a; and the cases there cited.
ELECTOR, government. One who has the right to make choice of public officers one, who has a right to vote.
2. The qualifications of electors are generally the same as those required in the person to be elected; to this, however, there is one exception; a naturalized citizen may be an elector of president of the United States, although he could not constitutionally be elected to that office.
