NOLLE PROSEQUI. An entry made on the record, by which the prosecutor or plain tiff declares that he will proceed no further. See Tr. & H. Pr. 566.
A none prosequi may be entered either in a criminal or a civil case. In criminal cases, before a jury is impanelled to try an indict ment,' and also after conviction, the attorney general has power to enter a nolle prosequi without the consent of the defendant; but after a jury is impanelled a 'nolle prosequi cannot be entered without the consent of the defendant ; State v. Roe, 12 Vt. 93; State v. Fleming, 7 Humphr. (Tenn.) 152, 46 Am. Dee. 73 ; Durham v. State, 9 Ga. 306. See Com. v. Cain, 102 Mass. 487; State v. Smith, H. 155, 6 Am. Rep. 180. It is for the prosecuting officer to enter a not. pros. in his discretion ; State v. Thompson, 10 N. C. 613; but in some states leave must be obtained of the court ; Anonymous, 1 Va. Cas. 139; State v. Roe, 12 Vt. 93.
It may be entered as to one of several de fendants; ,11 East 307.
The effect of a nalle prosequi, when ob tained, is to put the defendant without day ; but it does not operate as an acquittal ;- for he may be afterwards reindicted, and, it is said, even upon same indictment fresh process may be awarded ; 6 Mod. 261; Corn. Dig. Indictment (K) ; Com. v. Wheeler, 2 Mass. 172; State v. Thornton, 35 N. C. 256. See 3 Cox, C. C. 93 ; Williams v. State, 57 Ga. 478 ; State v. Primmi 61 Mo. 173.
• A nolle prosequi as to some of the counts in an indictment works no acquittal, but leaves the prosecution just as though such counts had never been inserted in the, indict ment; Dealy v..U. S., 152 U. S.,530, 14 Sup. Ct. '680, 38 L. Ed. 545, In civil cases, a nolle prosequi is 'consider ed not to be • of the nature of a retraxit or release, as was formerly supposed; but an d'greement only not to proceed: eitheragainst some of the defendants, or 'as to part of the suit. See. 1' Wms. Saund. 207• 1 Chitty, Pl.
546. A nolle prosequi is now held to be • no bar to a future action for the same cause, except in those cases where, from the nature of the action, judgment and execution against one is a satisfaction of all the dam ages sustained by the plaintiff ; 3 Term 511, In civil cases, a mite pro sequi may be en tered as to one of several counts ; Brown v. Feeter, 7 Wend. (N. Y.) 301; or to one of several defendants; Minor v. Bank, 1 Pet. (U. S.) SO, 7 L. Ed. 47; as in the case of a joint contract, where one of two defendants pleads infancy, the plaintiff may enter a • no tie prosequi as to him and proceed against the other; Woodward v. Newhall, 1 Pick: (Mass.) 500.
See, generally, Beidman v. Vanderslice, 2 Rawle (Pa.) 334; Grahame v. Harris, 5 Gill. & J. (Md.) 489 ; Judson v. Gibbons, 5 Wend. (N. Y.) 224.
An entry of nolle prosequi does not amount to a retraxit; it may be entered by plaintiff as to a part of the suit or as to one of the defendants where the action is joint and several, or where the defendants sever in their pleas; but not as to a defendant in as sumpsit where the action is joint (unless it be for some matter which may be pleaded for his personal discharge) ; Beidman v. Van derslice, 2 Rawle (Pa.) 334. It rather re sembles a continuance ; 1 Troub. &. Haly Pr. § 566.