44 N.C. 209 | N.C. | 1853
To this replication the defendants demurred; and his Honor gave judgment sustaining the demurrer, from which the solicitor for the State prayed and obtained an appeal to the Supreme Court.
We cannot distinguish the principle which must govern this case from that which was decided by this Court in S. v.Tisdale,
The only difference between the replication in that case and the present, consists in the allegations in this, that the defendants had knowledge of the bill having been found in the Superior Court, and procured an indictment to be found against them in the county court, and voluntarily submitted thereon, and paid the fine which the court imposed upon them. The replication does not state that the defendants had been arrested upon acapias issued from the Superior Court before they were indicted in the county court, and we must take it that the fact was not so. Their knowledge of the bill having been found in the Superior Court cannot then vary the result. As was said in S. v. Tisdale, "the defendant had no day in the Superior Court — he having neither *204
been arraigned nor even arrested on the bill in that court. Until he had a day in court on that indictment, he was not vexatus thereby, and stood in relation thereto on the same footing as if he had been put without day by a nolle prosequi thereon; in which last case, it is laid down in McNeill's case,
PER CURIAM. Judgment accordingly.
Cited: S. v. Swepson,