ELECTION OF ACTIONS
practice. It is frequently at the choice of the
plaintiff what kind of an action to bring, a skilful practitioner would
naturally select that in which his client can most easily prove what is his
interest in the matter affected, may recover all his several demands
against the defendant, may preclude 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 bail where it is for the plaintiffs interest, may
obtain a judgment 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 statute prescribes
a new remedy, the plaintiff has his election either to adopt such remedy,
or proceed at common law. Such statutory remedy is cumulative, 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.
Source: Bouviers Law Dictionary 1856 Edition
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