as joint property; 4 Del. Ch. 117. After a suit in replevin has been discon- tinued before judgment without obtaining any benefit, because plaintiff has paid the value of the goods to satisfy his replevin bond, this suit does not constitute such an election of remedy as to stop him from claiming payment of the purchase price out of the assets of the purchaser's estate; 82 Md. 50. In Criminal Law. The choice or de- termination by a prosecuting officer, upon which of several charges, or counts, in an indictment he will proceed to trial. No objection can be raised, either on de- murrer or in arrest of judgment, though the defendant or defendants be charged in differ- ent 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 separate offence, and in misde- meanors 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 accustomed to quash indictments con- taining several distinct charges, when it ap- pears, before the defendant has pleaded and the jury are charged, that the inquiry is to include several crimes. When this circum- stance is discovered during the progress of the trial, the prosecutor is usually called upon to select one felony, and to confine 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 receiv- ing several articles, knowing them to have been stolen, and it is proved that they were received at separate times, the prosecutor may be put to his election; but if it is pos- sible that all the goods may have been re- ceived at one time, he cannot be compelled to abandon any part of his accusation; 1 Mood. 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 and purported to be signed by different persons, with intent to defraud the king. His coun- sel contended that the prosecutor ought to elect upon which of these receipts he would proceed, as amidst such a variety it would be almost impossible for the prisoner to conduct his defence. As, however, the in- dictment alleged that they were all uttered at one and the same time, and the proof corresponded with this allegation, the court refused to interfere; and all the judges sub- sequently held that a proper discretion had been exercised: 2 Leach 877; 2 East, Pl. Cr. 934. See 11 Cl. & F. 155; Dearsl. 427; 12 Cush. 612; 12 S. & R. 69; 2 H. & J. 426; 12 Wend. 426; 118 Mass. 443; 29 Mich. 61; 75 Mo. 355. The state need not elect on which count of an indictment it will proceed to trial, where the several counts relate to the same transaction; 109 Mo. 654. The artificial distinction between felonies and mis- demeanors is, in most jurisdictions, obsolete, and in most states several distinct offences to which a similar punishment is attached may be joined. It usually rests with the court whether it will compel a prosecuting officer to elect which count to pro- ceed on; 51 Me. 863; 104 Mass. 552; 89 ПІ. 571; 66 Мо. 632; Whart. Crim. Pl. & Pr. § 293. The election should be made before opening the case of the de fence; Bish. Cr. Proc. $ 462; 65 Ga. 449; 107 Mass. 219.