ELECTION is when a man is left to his own free will to take or do one thing or another which he pleases (Ter mes de la Leg); and he who is to do the first act shall have the election. If A covenants to pay B a pound of pepper or saffron before Whitsuntide, it is at the election of A at all times before Whit suntide which of them he will pay ; but if he does not pay either before the time fixed, then it is at the election of B to sue for which he pleases. If a man give to another one of his horses, the donee may take which he chooses; but if the donation be that he will give one of his horses (in the future tense), then the election is in the donor.
Courts of equity frequently apply the principle of election in cases where a party has inconsistent rights, and compel him to elect which he will enforce : as, if A by his will assumes to give an estate belonging to B to C, and gives other benefits to B, B cannot obtain the bene fits given to him by the will unless he gives effect to the testator's disposition to C. It does not appear to be quite settled whether the party who elects to retain his own property in opposition to the in strument is bound to relinquish only so much of the property given to him as will be sufficient to compensate the disap pointed parties, or whether his election will be followed by absolute forfeiture of the whole. The arguments on both sides are ably stated 1 Roper, Husband and Wife, 566 n. ; 1 Swanst. Reports, 441 ; 2 Coke's Repts., 35 b., Thomas's note. The principle of ejection is equally recognized in courts of law, though they are seldom called to deal upon it, except where the alternative is very distinct, or the party has already elected. Indeed this principle is of universal application, and prevails in the laws of all countries; it is applicable to all interests, whether of married women or of infants ; to interests immediate, remote, or contingent ; to copyhold as well as to freehold estates ; to personalty as well as to realty; to deeds as well as to wills.
Courts .of equity also will compel a plaintiff suing at law as well as in equity, or in a foreign court as well as in the court in England, for the same matter, at the same time, to elect in which court he will proceed, and will restrain him from pursuing his rights in all others. There are some exceptions to this doctrine, as in the case of a mortgagee, who may proceed in equity for a foreclosure, and on his bond or covenant at law at the same time; but this arises from the difference of the remedy, and from the original agreement to give the concurrent remedies : and even in such a case a court of equity will restrain a mortgagee from enforcing his judgment at law upon the bond or cove nant, if he is not prepared to deliver up the mortgaged property and the title deeds belonging to it.
On Election under a will in the Roman Law see Dig. xxxiii. tit. 5, De Optione vel Election Legate: and as to the French Law, see the Code Civil, art 1189, &c., Des Obligations Alterna tives.
The term Election is borrowed from the Roman Law. The word optio often occurs in the Roman writers to express that a man may choose of two or more thine or conditions, which he will take. The instances of election and option given in the title of the Digest, above referred to, are limited to options given by way of legacy, which is the subject treated of in that part of the Digest. Probably the legal meaning of election and option was limited to election under a testament