This term, in its most usual acceptation, signifies the
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, 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 maxim 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 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 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, 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,
Ropers 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. 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
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, Browns
Practical Treatise on Actions at Law, in the 45th vol. of the Law Library,
U. S. Dig. Actions IV.
Source: Bouviers Law Dictionary 1856 Edition
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