Law Dictionary

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 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. 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 : Bouvier 1856

Language : English

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