¶1We are to decide whether the bringing a civil action, by issuing a writ, was a bar to a subsequent proceeding by indictment. The object of the Act seems to have been that the offender should not be punished both criminally and civilly for the same matter, which might have been done before the passage of the Act. But it is not inconsistent with this object that the preliminary proceedings in both may exist at the same time, nor do I perceive that the benefit intended to be secured to the defendant is in any way impaired, if the prosecutor, at the time of the trial, is put to his election, on which he will proceed; or if this is not done, by allowing the defendant to plead the trial of one case in bar of the other, which seems to be in analogy to other cases of election ; State vs. Blyth, 1 Bay, 166 ; 1 Bay, 501. This question does not seem to have arisen before. The only reported case is Johnson vs. Lemons, 2 Bailey, 392 ; but that decides nothing as to the time when the prosecutor should be put to his election.
¶2The motion is dismissed.