ELECTION. Choice ; selection. The selection of one man from amongst more to discharge certain duties in a state, corpora tion, or society.
The obligation imposed upon a party to choose between two inconsistent or alterna tive rights' or claims, in cases where there is clear intention of the person. from whom he derives one that he should not enjoy both.
Etymologically, election denotes choice, selec tion out of the number of those oboosing. Thus, the election of a governor would be the choice of some individual from the body of the electors to per form the duties of governor. In common use, how ever, it has come to denote such a selection made by a distinctly defined body—as a board of alder men, a corporation, or state—concluded in such a manner that each individual of the body choosing shall have an equal voice in the choice, hut without regard to the question whether the person to be chosen is a member of the body or not, The word occurs in law frequently in such a sense, especially in governmental law and the law of corporations.
But the term has also acquired a more technical signification, in which it is oftener used as a legal term, which is substantially the choice of one of two rights or things, to each one of which the party choosing has equal right, but both of which he cannot have. This option occurs in fewer in stances at law than in equity, and is in the former branch, in general, a question of practice.
At Law. 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 one or the other until the time of payment ; he has not the choice, however, to pay a part in each. Pothier, Obl. part 2, c. 3, art. 6, no. 247 ; 11 Johns. N.
Y. 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 he which •is the first agent, and which ought to do the first act, shall have the election." Coke, Litt. 145 a; 7 Johns. N. Y. 465 ; 2 Bibb, Ky.
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. Coke, Litt. 145 a; Viner, Abr. Election (B, C); Po thier, ObI. no. 247 ; Bacon, Abr. Election, B ; 1 Des. Ch. So. C. 460; Hopk. Ch. N. Y. 337. It is a maxim of law that, an election once made and pleaded, the party is concluded : electio semel facts, et placituottestatum,non patitur re gressum. Coke, Litt. 146 ; 11 Johns. N. Y. 241.
Other cases in law arise: as in case of a person holding land by two inconsistent titles, 1 Jenk. Cent. Cas. 27, dower in a piece of land and that piece for which it was exchanged. 3 Leon. 271. See Sugden, Pow. 498 et seq.
In Equity. The doctrine of election pre supposes a plurality of gifts or rights, with an intention, express or implied, of the party who has a right to control one or both, that one should be a substitute for the other. 1 Swanst. Ch.394, note (b); 3 Wooddeson, Lect. 491 • 2 Roper, Leg. White ed. 480-578.
Where an express and positive election is required, there is no claim, either at law or in 'equity, to but one of the objects between which election is to be made ; but in many cases there is apparent, from the whole of an i instrument, the intention that the party to he benefited shall be benefited on certain con ditions. In such cases, equity will require the party to elect.
The question whether an election is re quired occurs most frequently in case of de vises; but it extends to deeds, 1 Swanst. Ch. 400, 401 ; 2 Story, Eq. Jur. 1075, n. ; but there must be a clear intention by the tes tator to give that which is not his property, 1 Sim. Ch. 105 ; 18 Yes. Ch. 41 ; 1 Ed. Ch. 532; cases of transactions involving property of the wife, 23 Beay. Rolls, 457 ; 25 id. 97 ; satisfaction of dower, Amid. Ch. 466, 682 ; 8 Paige, Ch. N. Y. 325; 2 Schoales & L. Ch. Ir. 452 ; 14 Sim. Ch. 2'58 ; 2 Ed. Ch. 237; 1 Drur. & Warr. 107. And if the testator has ' some interest in the thing disposed, the pre sumption that be intended to dispose only of his interest must be overruled to make a case of election. 6 Dow, 149, 179; 1 Yes. Ch. 515.