
    The State vs. Ira Arnold.
    where a civil action by the owner, and a prosecution instituted by a third person, are both pending for the same offence of harboring a slave, the owner may, nevertheless, be required to elect on which case to proceed.
    •When either case is ready for trial the defendant may require the election to be made.
    BEFOSE WHITNER, J„ AT ANDERSON, FALL TERM, 1854.
    The report of his Honor, the presiding Judge, is as follows :
    “ A true bill was found at this term against the defendant, for harbouring a slave, and placed on the calendar docket. A bail writ had been issued and returned to this term, on which the defendant was arrested, and bail required in the sum of one thousand dollars. The' defendant was in jail and had been for some months. Whether in virtue of the warrant or the bail writ, I cannot now state, though he had either given bail in the civil process or entered into recognizance on the warrant. When the case in the sessions was called, his counsel announced his readiness to proceed to trial,- and submitted a motion ordering an election of the remedy to be pursued.
    “ The solicitor moved for a continuance, not being ready on the part of the State to proceed with the trial, and resisted the motion requiring an election of the remedy, avowing his pur. pose to prosecute both cases, unless restrained by the court, and alleged that the prosecution had not originated at the instance of the owner of the slave, by whom the suit at law had been instituted.
    “ In conformity with long established practice, I continued the case -in-the sessions on the motion of the solicitor. I also refused to grant the order asked for at this stage of the proceedings. ' I confess, however, if I had not felt constrained to hold my hand by previously adjudged cases indicating a different course, my own construction of the Act of Assembly, in view of the circumstances before me, would have led to a different result.”
    The defendant appealed.
    
      Sullivan, for the motion,
    cited 7 Stat. 460; State vs. Stein, 1 Rich. 189; and contended, that under the Act the owner alone could prosecute. The State should therefore be ordered to abandon the prosecution. When the master institutes no prosecution, a civil action by him, is itself an election.
    
      Heed, Solicitor, contra.
    The prosecution here is not by the owner. This is, therefore, no case for election under the Act. Election can only be required where the owner both prosecutes and sues; 2 Bail. 392.
   The opinion of the Court was delivered by

Glover, J.

The Act under which the defendant was indicted (7 Stat. 460), provides, “ That if any white person shall harbor, conceal, or entertain any runaway or fugitive slave, such person shall be liable to be indicted for a misdemeanor or prosecuted in a civil action for damages, at the election of the owner or person injured,” &c.

The election of the remedy is given to the owner or person injured; but it does not follow that a stranger cannot prosecute for the misdemeanor. The intention of the legislature was, that the owner or person injured should not avail himself of both remedies. When the indictment and civil action are both pending, and either is ready for trial, the party may be put to his election, which case he will try. The commencement of a civil action first, neither bars the indictment nor determines his choice. A defendant may plead the trial of one in bar to the other. State vs. Stein, (1 Rich. 189.)

The motion is therefore granted, and it is ordered, that unless the owner of the slave or person injured shall inform the Clerk of the Court for Anderson District of his election, on or before the first day of January next, the recognizance be discharged.

O’Neall, Wardraw, Withers, Whither and Muhro, JJ., concurred.

Motion •granted.  