delivered the opinion of the court.

An acquittal on an indictment for a felonious assault will not bar a prosecution for a common assault and battery before a justice of the peace, because the defendant, under the *517indictment, could not be convicted of the minor offence. But in this case the affidavit made before the justice charged an indictable offence above the grade of an assault of which he had jurisdiction ; and as the defendant was subsequently indicted and acquitted for the same felony described in the affidavit, the plea of autrefois acquit presented a bar to any further prosecution on the proceedings before the justice. The justice had no jurisdiction of the case.

The other judges concurring, the judgment will be reversed.