#### State v. McNeill.

"1 vFrom Cumberland. J

A warrant issued to apprehend 'Defendant, and on the 5th of October he was bound to appear at December Term of the County Court. On the 28th of October a bill for the same offence was found against the Defendant in the Superior Court, and when the Defendant appeared in the County Court in December, a nolle prosequi was entered on the bill found against him at that term. It was held, that as tjie effect of a nolle prosequi is to put the Defendant, without day, upon the indictment to which it applies, he, when in that situation, becomes amenable on another indictment in any Court having- jurisdiction Sf the offence, otherwise a ml, pros, would amount to an acquittal.

On the 23d of September, 1822, a warrant issued to apprehend the Defendant, who was charged with having committed an assault and battery; on the 5th of October, 1822, he entered into recognizance before a Justice of the Peace, to appear at December Term, 1822, of Cumberland County Court, and at that Term a bill of indictment was found, on which a nolle prosequi was entered at the same Term.

At the Term of Cumberland Superior Court, which commenced on the. 28th of October, 1822, this bill of indictment was found against the Defendant for the same offence, to which at Spring Term, 1823, he pleaded his apprehension by warrant, and the finding of the bill in the County Court, to which the Solicitor for the State replied the nolle prosequi, and Defendant demurred. — ■ Norwood, Judge, who presided, sustained the demurrer, and gave judgment for the Defendant, from which the State appealed.

Per Curiam.

The Court is of opinion, that a bill of Sfidictmcnt ha\ing been found against the Defendant in *184the County Court, at December Sessions in 1822, for the same offence, is no defence against the present indictment in the Superior Court; inasmuch as it appears 0H the pleadings, that a nolle prosequi had been entered on the said first indictment prior to the time of pleading in this. That as tjie effect of a nolle prosequi is to put the Defendant, without day, upon tiiat indictment, he becomes, while he is so, amenable on another indictment in any Court having jurisdiction of the offence; otherwise a nolle prosequi would operate as a bar to any other prosecution. The power of issuing new process after a nolle prosequi, cannot affect this question, because no process lias been issued. The plea is, therefore, insufficient and must be overruled. — Judgment reversed.