The doctrine does not apply to creditors. 12 Yes. Ch. 354 ; 1 Powell, Dev. Jarman ed. 437.
An election may be made by persons under legal disabilities as to conveyances. 4 Kay & J. Ch. 409. 9 Mod. 35 ; 1 Swanst. Ch. 413; 2 Mer. Ch. 483. See 1 Macn. & G. 551 ; 9 Beay. Rolls, 176; 6 De Gex, M. & G. 535 ; 2 Bland, Ch. Md. 606. Positive acts of accept ance or renunciation are not indispensable, but the question is to be determined from the circumstances of each case as it arises. 4 Beay. Rolls, 103; 21 id. 447; 13 Price, Exch. 782; 1 M'Clel. 541; 15 Penn. 430. And the election need not be made till all the circum stances are known. 1 Brown, Ch. 186, 445; 3 id. 255 ; 2 Ves. & B. Ch. 222 ; 12 Ves. Ch. 136 ; 1 M'Clel. & Y. 569. See, generally, 2 Story, Eq. Jur. 1075-1098; 1 Swanst. Ch. 402, note; 2 Roper, Leg. White ed. 480-578.
In Practice. A choice between two or more means of redress for an injury or the punishment of a crime allowed by law.
The selection of one of several forms of action allowed by law.
The choice of remedies is a matter demanding practical judgment of what will, upon the whole, best secure the end to be attained. Thus, a remedy may be furnished by law or equity, and at law, in a variety of actions resembling each other in some particulars. Actually, however, the choice is greatly narrowed by statutory regulations in modern law, in most cases. Bee 1 Chitty, Plead. 207-214 It may be laid down as a general rule that when a statute prescribes a new remedy the plaintiff has his election either to adept such remedy or proceed at common law. Such statutory remedy is cumulative, unless the statute expressly or by necessary implication takes iway the common-law remedy. 1 Serg. & R. Penn. 32 ; 6 id. 20 ; 5 Johns. N. Y.175; 10 id. 389. 16 id. 220 : 1 Call, 243; 2 Me. 404 ; 5 id. 88 ; 6 Harr. & J. Md. 383 ; 4 Habit. 384; 3 Chitty, Pract. 130.
In Criminal Law. In point of law, no objection can he rtkised, either on demurrer or in arrest of judgment, though the defend ant or defendants be charged in different counts of an indictment with different offences of the same kind. Indeed, on the face of the record every count purports to be for a sepa rate offence, and in misdemeanors it is the daily practice to receive evidence of several libels, several assaults, several acts of fraud, and the like, upon the same indictment. In
cases of felony, the courts, in the exercise of a sound discretion, are accustemed to quash in dictments containing several distinct charges, wherry it appears, before the defendant has pleaded and the jury are charged, that the inquiry is to include several crimes. When this circumstance is discovered during the progress of the trial, the prosecutor is usually called upon to select one felony, and to con fine himself to that, unless the offences, though in law distinct, seem to constitute in fact but parts of one continuous transaction. Thus, if a prisoner is charged with receiving several articles, knowing them to have been stolen, and it is proved that they were re ceived at separate times, the prosecutor may be put to his election ; but if it is possible that all the goods may have been received at one time, he cannot be compelled to aban don any part of his accusation, 1 Mood. Cr. Cas. 146 ; 2 Mood. & R. 524. In another case, the defendant was charged in a single count with uttering twenty-two forged re ceipts, which were severally set out pur ported to be signed by different persons, with intent to defraud the king. His counsel con tended that the prosecutor ought to elect upon which of these receipts he would proceed, as amidst such a variety it would be almost im possible for the prisoner to conduct his de fence. As, however, the indictment alleged that they were all uttered at one and the same time, and the proof corresponded this allegation, the court refused to interfere; and all the judges subsequently held that a proper discretion had been exercised. 2 Leach, Cr. Cas. 4th ed. 877 ; 2 East, Pl. Cr. 934. See 8 East, 41 ; 2 Campb. 132; 3 Term, 106; 11 Clark & F. Hou. L. 155 ; Dears]. Cr. Cis. 427; 5 Mete. Mass. 532; 12 Cush. Mass. 612, 615 ; 12 Serg. & R. Penn. 69; 2 Harr. & J. Md. 426; 12 Wend. N. Y. 426.