
    The State against Blyth.
    UPON an indictment found in April sessions, at Georgetown, against the defendant, for assaulting Mr. Maddan, attorney at law.
    
      Pinckney stated, that the prosecutor had commenced his civil action in the court of common pleas, for damages for the same assault, which he conceived oppressive and contrary to the rules and practice of the court ; and therefore moved, before the jury were charged, that the prosecutor, Maddan, should make his election of proceeding either in this criminal method upon the indictment, or in the civil action which he had actually commenced ; and that he should not be permitted to proceed both ways at the same time, for the same cause of action.
    In support of the motion he quoted the case of Muller v. Smith, tided in Charleston, where the prosecutor was obliged, to malte his election, and proceeded crhninaliter. Martin v. Santee Club, tried at Georgetown', where prosecutor dropped the prosecution upon indictment, and relied upon his civil action for damages in the common pleas. Also, Fielding’s case, 2 Burr. 719,20. where the whole court were of opinion that the prosecutor ought to make his election directly, for that this was the ccftistant rule ; and although, in that case, it was a motion for an information against a justice of the peace, for acting illegally, the judges said it made no difference ; for if, said they, the prosecutor had proceeded in the ordinary method, by indictment, (as in the present case,) and if such indictment had been actually found, yet the attorney-general would, upon application made to him, have granted a nolle prosequi upon such indictment, in case it appeared to him that the prosecutor was determined to carry on a civil action at the same time.
    For the prosecution, the counsel cited 3 Black. Com. 121. and 4 Black. 156. to shew the general law, that in case of assaults, the party might proceed both ways at the same time. But
   Per Curiam.

The practice of the court at this day is very different; and although the party may commence his civil action and prosecution at the same time j yet, if he will persist in carrying them on both at the same time, the Attorney-General will and ought to enter a nolle prosequi upon the indictment, unless he makes his election ; because it would be unjust to lend the aid of the court to the prose cut.or, for the purposes of oppression and revenge, when he was about appealing at the same time to a jury of Ms country for damages for the same injury ; and because, as it is very properly laid down in Fielding,s case, it would be giving the prosecutor a very unfair and unreasonable advantage over the defendant, by discovering the nature of , the (evidence he was able to bring forward in the civil action, before it was tried. And that this point had been ruled in the cases quoted by the defendant’s counsel, and sundry other?, so that it is not now to be questioned.  