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ELECTION OF ACTIONS, in practice. It is frequently at the choice of the plaintiff what kind of an action to bring; a skilful practitioner will 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 he 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 plaintiff's interest; may obtain a judgment with the least expense and delay; may entitle himself to costs; and may demand bail in error. 1 Chit. PI. 207 to 214. 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.
ELECTION OF A DEVISE OR LEGACY. It is an admitted principle, that a person shall not be permitted to claim under any instrument, whether it be a deed or a will, without giving full effect to it in every respect, so far as such person is concerned. When a testator, therefore, gives what belongs to another and not to him, and gives to the owner some estate of his own; this gift is under an implied condition either that he shall part with his own estate, or not take the bounty. 9 Ves. 515; 10 Ves. 609; 13 Ves.
220; 2 Ves. 697; 1 Suppl. to Ves. jr. 222; lb. 55; lb. 340. If, for example, a testator undertakes to dispose of an estate belonging to B, and devise to B other lands, or bequeath to him a legacy by the same will, B will not be permitted to keep his own estate, and enjoy at the same time the benefit of the devise or bequest made in his favour, but must elect whether he will part with his own estate, and accept the provisions in the will, or continue in possession of the former and reject the latter. See 2 Vern. 581; Forr. 176; 1 Swanst. 436, 447; 1 Bro. C. C. 480.
The foundation of the equitable doctrine of election, is the intention, explicit or presumed, of the author of the instrument to which it is applied, and such is the import of the expression by which it is described as proceeding, sometimes on a tacit, implied or constructive condition, sometimes on equity. See Cas. Temp. Talb. 183; 2 Vern. 582; 2 Ves. 14. 1 Eden, R. 596; 1 Ves. 306. See, generally, 1 Swan. 380 to 408, 414, 425, 432, several very full notes.
As to what acts of acceptance or acquiescence will constitute an implied election, see 1 Swan. R. 381, n. a; and the cases there cited.
ELECTOR, government, one who has the right to make choice of public officers; one who has a right to vote. The qualifications of electors, are generally the same as those required in the person to be elected; to this, however, there is one exception, a naturalized citizen may be an elector of president of the United States, although he could not constitutionally be elected to that office.
ELECTORS OF PRESIDENT, are persons elected by the people, whose sole duty is to elect a president and vice-president of the U. S. The constitution provides, Am. art. 12, that " the electors shall meet in their respective states, and vote by ballot for president and vice-president, one of whom at least shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as president, and in distinct ballots the person voted for as vice-president; and they shall make distinct lists of all persons voted for as president, and of all persons voted for as vice-president, and the number of votes for each; which list they shall sign and certify, and transmit, sealed, to the seat of the government of the United States, directed to the president of the senate; the president of the senate shall, in the presence of the senate and house of representatives, open all the certificates, and the votes shall then be counted; the person having the greatest number of votes for president, shall be the president, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers, not exceeding three, on the list of those voted for as president, the house of representatives shall choose immediately, by ballot, the president. But in choosing the president, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose, shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the house of representatives shall not choose a president whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the vice-president shall act as president, as in the case of the death or other constitutional disability of the president.
2. The person having the greatest number of votes as vice-president, shall be the vice-president, if such
number be a majority of the whole number of electors appointed; and if no person have a majority, then from the two highest numbers on the list, the senate shall choose the vicepresident: a quorum for the purpose shall consist of two-thirds of the whole- number of senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of president, shall be eligible to that of vice-president of the United States." Vide 3 Story, Const. § 1448 to 1470.
ELEEMOSYNARY, charitable, alms-giving. Eleemosynary corporations are confined to colleges, schools and hospitals. 1 Woodd. Lect. 474; Skinn. 447; 1 Lord Raym. 5; 2 T. R. 346.
ELEGIT, Eng. practice, remedies, a writ of execution directed to the sheriff, commanding him to make delivery of a moiety of the party's land, and all his goods, beasts of the plough only excepted. The sheriff, on the receipt of the writ, holds an inquest to ascertain the value of the lands and goods he has seized, and then they are delivered to the plaintiff, who retains them until the whole debt and damages have been paid and satisfied; during that term he is called tenant by eligit. Co. Litt. 239. Vide Pow. Mortg. Index, h. t.; Wats. Sher. 206. As to the law of the several states on the subject of seizing land and extending it, see 1 Hill. Ab. 555, 6.
ELIGIBILITY, capacity to be elected. Citizens are in general eligible to all offices, the exceptions arise from the want of those qualifications which the constitution requires; these are such as regard his person, his property, or relations to the state. 1. In general, no person is eligible to any office, until he has attained the full age of twenty- years; no one can be elected a senator of the United States, who shall not have attained the age of thirty years, been a citizen of the United States nine years, and who shall not be an inhabitant of the state for which he shall be chosen. Const. art. 1, s. 3. No person, except a natural born citizen, or a citizen of the United States at the time of the adoption of this constitution, is eligible to the office of president, and no person shall be eligible to that office, who shall not have attained the age of thirty-five years, and been fourteen years a resident within the United States. Const. art. 2, s. 1. —2. A citizen may be ineligible in consequence of his relations to the state, for example, holding an office incompatible with the office sought. Vide Ineligibility. Because he has not paid the taxes the law requires; because he has not resided a sufficient length of time in the state.— 3. He may be ineligible for want of certain property qualifications required by the constitution of the state. Const. of Virginia, art. 3, 8. 7.
ELISORS, practice, are two persons appointed by the court to return a jury, when the sheriff and the coroner have been challenged as incompetent; in this case the elisors return the writ of venire directed to them, with a panel of the jurer's names, and their return is final, no challenge being allowed to their array. 3 Bl. Com. 355; 3 Cowen, 296; 1 Cowen, 32.
ELOIGNE, practice, this word signifies, literally, to remove at a great distance; to remove afar off. It is used as a return to a writ of replevin, when the chattels have been removed out of the way of the sheriff. Vide Elongata.
ELONGATA, practice, is the return made by the sheriff to a writ of replevin, when the goods have been removed to places unknown to him. See the form of this return,
Wats. Sher. Appx. c. 18, s. 3, p. 454; 3 Bl. Com. 148. On this return the plaintiff is entitled to a capias in withernam. Vide Withernam, and Wats. Sher. 300, 301. The word eloigne, (q. v.) is sometimes used as synonymous with elongata.
ELOPEMENT, is the departure of a married woman from her husband, and dwelling with an adulterer. While the wife resides with her husband, and cohabits with him, however exceptionable her conduct may be, yet he is bound to provide her with necessaries, and to pay for them; but when she elopes, the husband is no longer liable for her alimony, and is not bound to pay debts of her contracting, when the separation is notorious; and whoever gives her credit under these circumstances, does so at his peril. Chit. Contr. 49; 4 Esp. R. 42; 3 Pick. R. 289;
1 Str. R. 647, 706; 6 T. R. 603; 11 John. R. 281; 12 John. R. 293; Bull. N. P. 135; Stark. Ev. part 4, p. 699.
ELSEWHERE, in another place. 1. Where one devises all his lands in A, B, and C, three distinct towns, and elsewhere, and had lands of much greater value than those in A,
B, and C, in another county, the lands in the other county were decreed to pass by the word elsewhere; and by Lord Chancellor King, assisted by Raymond, Ch. J., and other judges, the word elsewhere, was the same as if the testator had said he devised all his lands in the three towns particularly mentioned, or in any other place whatever. 3 P. Wms. 56. See also Prec. Chan. 202; 2 Vern. 461; 2 Vern. 560; 3 Atk. 492; Cowp. 360; Id. 808;
2 Burr. 912; 5 Bro, P. C. 496, S.
C, 1 East, 456: 1 Vern. 4 n.—2. As to the effect of the word elsewhere, in the case of lands not purchased at the time of making the will, see 3 Alk. 254; 2 Vent. 351. Vide Alibi.
EMANCIPATION, is an act by which a person who was once in the power of another is rendered free. By the laws of Louisiana, minors may be emancipated. Emancipation is express or implied.
Express emancipation. The minor may be emancipated by his father, or if he has no father, by his mother, when she shall have arrived at the age of fifteen years. This emancipation takes place by the declaration to that effect of the father or mother, before a notary public, in the presence of two witnesses. The orphan minor, may likewise be emancipated by the judge, but not before he has arrived at the full age of eighteen years, if the family meeting called to that effect, be of opinion that he is able to administer his property. The minor may be emancipated against the will of his father and mother when they ill treat him excessively, refuse him support, or give him corrupt example.
The marriage of the minor is an implied emancipation.
The minor who is emancipated, has the full administration of his estate, and may pass all acts which may be confined to such administration; grant leases, receive his revenues and moneys which may be due him, and give receipts for the same. He cannot bind himself legally by promise or obligation, for any sum exceeding the amount of one year of his revenue. When he is engaged in trade, he is considered as having arrived to the age of majority, for all acts which have any relation to such trade.
The emancipation, whatever be the manner in which it may have been effected, may be revoked, whenever the minor contracts engagements which exceed the limits prescribed by law,
See Civil Code of Louisiana, B. 1, tit. 8, c. 3; Code Civ. B. 1, tit. 10, c. 2; Diet. de Droit, par Ferriere, Diet. de Jurisp. art. Emancipation.
By the English law, filial emancipation is recognized chiefly in relation to the parochial settlement of paupers. See 3 T. R. 355; 6 T. R. 247; 8 T. R. 479; 2 East, 276; 10 East, 88; 11 Verm. R. 258; 477. See Manumission.
EMBARGO, in maritime law, is a proclamation or order of state, usually issued in time of war, or threatened hostilities, prohibiting the departure of ships or goods from some or all the ports of such state until further order. The detention of ships by an embargo is such an injury to the owner as to entitle him to recover on a policy of insurance against "arrests or detainments." And whether the embargo be legally or illegally laid, the injury to the owner is the same; and the insurer is equally liable for the loss occasioned by it. Marsh. Ins. B. 1, c. 12, s. 5; 1 Kent, Com. 60; 1 Bell's Com. 517, 5th ed. An embargo, detaining a vessel at the port of departure, or in the course of the voyage, does not, of itself, work a dissolution of a charter party, or the contract with the seamen. It is only a temporary restraint, imposed by authority, by legitimate political purposes, which suspends, for a time, the performance of such contracts, and leaves the rights of parties untouch, ed. 1 Bell's Com. 517; 8 T. R. 259; 5 Johns. R. 308; 7 Mass. R. 325; 3 B. & P. 405—434; 4 East, R. 546—566.
EMBEZZLEMENT, crim. law, is the fraudulently removing and se. creting of personal property, with which the party has been entrusted, for the purpose of applying it to his own use.
The act of April 30, 1790, s. 16, 1 Story, L. U. S. 86, provides that if any person within any of the places under the sole and exclusive jurisdiction of the United States, or upon the high seas, shall take and carry away, with an intent to steal or purloin, the personal goods of another; or if any person or persons, having, at any time hereafter, the charge or custody of any arms, ordnance, munitions, shot, powder, or habiliments of war, belonging to the United States, or of any victuals provided for the victualling of any soldiers, gunners, marines or pioneers, shall, for any lucre or gain, or wittingly, advisedly, and of purpose to hinder or impede the service of the United States, embezzle, purloin or convey away, any of the said arms, ordnance, munition, shot or powder, habiliments of war, or victuals, that then and in every of the cases aforesaid, the person or persons so offending, their counsellors, aiders and abettors (knowing of and privy to the offences aforesaid) shall, on conviction, be fined not exceeding the fourfold value of the property so stolen, embezzled or purloined; the one moiety to be paid to the owner of the goods, or the United States, as the case may be, and the other moiety to the informer and prosecutor, and be publicly whipped, not exceeding thirty-nine stripes.
The act of April 20, 1818, 3 Story, 1715, directs that wines and distilled spirits shall, in certain cases be deposited in the public warehouses of the United States, and then it is enacted, s. 5, that if any wines, or other spirits, deposited under the provisions of this act, shall be embezzled, or fraudulently hid or removed, from any store or place wherein they shall have been deposited, they shall be forfeited, and the person or persons so embezzling, hiding, or removing, the same, or aiding or assisting therein, shall be liable to the same pains and penalties as if
such wines or spirits had been fraudulently unshipped or landed without payment of duty.
By the 21st section of the act to reduce into one the several acts establishing and regulating the post-office, passed March 3,1S25, 3 Story, 1991, the offence of embezzling letters, is punished with fine and imprisonment. Vide Letter.
The act more effectually to provide for the punishment of certain crimes against the United States and for other purposes, passed March 3, 1825, s. 24, 3 Story, 2006, enacts that, if any of the gold or silver coins which shall be struck or coined at the mint of the United States, shall be debased, or made worse, as to the proportion of fine gold or fine silver therein contained, or shall be of less weight or value than the same ought to be, pursuant to the several acts relative thereto, through the default or with the connivance of any of the officers or persons who shall be employed at the said mint, for the purpose of profit or gain, or otherwise, with a fraudulent intent; and if any of the said officers or persons shall embezzle any of the metals which shall, at any time, be committed to their charge for the purpose of being coined; or any of the coins which shall be struck or coined, at the said mint; every such officer, or person who shall commit any, or either, of the said offences, shall be deemed guilty of felony, and shall be sentenced to imprisonment and hard labour for a term not less than one year, nor more than ten years, and shall be fined in a sum not exceeding ten thousand dollars.
When an embezzlement of a part of the cargo takes place on board of a ship either from the fault, fraud, connivance or negligence of any of the crew, they are bound to contribute to the reparation of the loss, in proportion to their wages. When the embezzlement is fixed on any