
    The Ex’rs. of Solomon Hill vs. Andrew Hill.
    Though the court of law has not the power to enforce an election, it may determine from the facts of the case whether the party has elected, and settle the rights of the parties accordingly.
    Col. Hill the father of the plaintiff’s testator, Solomon Hill, and of Andrew Hill, by his will gave a tract of land to Andrew on condition that he would relinquish all right to certain negroes then in the possession of Colonel Hill, which negroes were bequeathed by Col. Hill to Solomon. The defendant claimed under a bill of sale from one Arnold. Col. Hill na een in possession of the negroes many years, and much evidence as to the right of property on both sides was given, but the reporter publishes only as much as is necessary to a proper understanding of the points of law decided by the court. The case was tried before Huger, J. and a verdict ivas found for the defendant. The plaintiff appealed.
    
      Clendenin, for the appeal.
    
      Rogers, contra.
   Cuma, per

Nott, J.

The facts of this case are invel-oped in a great deal of obscurity, as is often the case in family transactions of this sort. With regard to the right of Arnold undér whom the defendant claim it is now too late to suffer such a question to be raised. Nor could such an enquiry, whatever might be the result, affect the rights of these parties after such a lapse of time. How Colonel Hill acquired a right to dispose of these negroes by will, does not appear, unless it was by possession from the year 1810, when Andrew Hill left him to the year 1816 when he died. It appears however that Colonel Hill himself entertained doubts of his right by his annex ing as a condition to the devise of the land to AndrewT that he should relinquish his right to the negroes. The-devise itself did not divest ahui e w oi nis right. ^¿But he can not take both under the will. The acceptance of one would amount to a relinquishment of the other. For although the doctrine of election belongs peculiarly to the court of equity, the power of enforcing which cannot well be exercised by a court of law, yet the court can make the enquiry whether an election has been made or not and determine according to the result of such investigation. Thus, for instance, if the plaintiff had produced an unequivocal relinquishment in writing from Andrew Hill to himself of the negroes in question according to the provisions of Col. Hill’s will there can be no doubt that he would have been entitled to recover. The principle being admitted, such relinquishment might he proved by other evidence or inferred from circumstances. I think therefore the question ought to have been distinctly submitted to the jury whether he had not made his election and renounced his right, if he had any, to the negroes in question. His honor then went into the facts of the case.

New trial granted.  