A philologicall commentary, or, An illustration of the most obvious and useful words in the lavv with their distinctions and divers acceptations, as they are found as well in reports antient and modern as in records and memorials never printed : usefull for all young students of the law / by Edward Leigh ...

ELECTION.

Election, is when a man is left to his own free will, to take or to do one thing or another, which* 1.1 he pleaseth.

Election may be of

• 1. Things, as i a man should pay a summe of Money, or else a Hor••e o•• a Hawk.
• 2. Of persons, as if he should pay it to I. S.* 1.2 or I. N.
• 3. Of places, as if he should pay it at Lond••n or at Lincoln.
• 4. Of the time, as the first day of April, or the second day of May.

In case an Election be given of two severall things, alwaies he which is the •••••••••• agent, and which ought to do the first act, shall have the E∣lection. As if a man granteth a Rent of 〈…〉〈…〉▪ or a robe to one and to his heirs, the G••antor shall have the election, for he is the first agent by pay∣ment of the one or delivery of the other. So if a man maketh a Lease rend••ing a ••••••t or a Robe, the Leslee shall have the election causa quâ supra.* 1.3 Bu•• if I give unto you one of my Ho••••es in my Stable, there you shall have the election, for you shall be the first agent by taking or seisure of one o•• them. And if one grant to another twenty loads of Hazill, or twenty loads of Maple to be taken in his wood of D. there the Grantee shall have electi∣on, for he ought to do the first act, sc. to sell and take the same.

When the thing granted is of things annuall, and are to have continuance, there the election remaineth to the Grantor as well after the day as before, otherwise it is when the things are to be performed vnied vice. And therefore If I grant to another for life an annuity or robe at the feall of Easter, and both are behind, the Grantee ought to bring his Writ of annuity in the disjunctive, for if he bring his Writ of annuity for the one only and recover, this judgment shall determine his election for ever, but if I contract with you to pay

unto you 20s. or a robe at the seast of Easter, after the feast you may bring an Action of Debt, for the one or the other.

If a Wife be indowed ex assensu patris, and the Husband dieth, the Wife hath election ei∣ther to have her dower at the Common Law, or ex assensu patris, if she bring a Writ of Dower at the Common Law and count, albeit she recover not, yet shall she never after claim her dower ex assensu, &c.

A. covenanteth to pay B a pound of Pepper* 1.4 or Saffron before Whitsuntide, which of them he will pay, but if he payes it not before the same feast, then afterwards it is at the election of B to have his action for which he pleaseth, either of the Pepper, or of the Saffron.

So if a man giveth to another his Horse or Cow, the Donee may take the one or the other* 1.5 at his election, but if it was that he will give it in the future tense, there the Donee cannot take the one nor the other, for then the Election is in the Donor.

If a Justice of Peace directeth his Warrant to a Constable, to bring the party apprehended before him or another Justice, it is in the E∣lection* 1.6 of the Constable to go to what Justice he pleaseth.

Notes

• * 1.1

  Terms of ••••••.
• * 1.2

  Fulbeeks prepar.
• * 1.3

  Cook on Lit. l. 2. c. 12. sect. 319.
• * 1.4

  Dyer fol. 18. 104.
• * 1.5

  21 H. 7. 19.
• * 1.6

  Cook l. 5. Rep. fol. 59