delivered the opinion of the Court. It was proved in this case, that the plaintiff erected and maintained a stone-wall, which lay eighteen inches within the highway, for obstructing which he was indicted by the procurement of the defendant. A nolle prosequi was entered upon the indictment, in 1827, by the county attorney for the Commonwealth, because^ as he says, it appeared that the defendant had been formerly acquitted of the same offence.
The defendant in this action has a right, notwithstanding this entry, to show that there was probable cause for the last prosecution ; and he does it, by showing the existence of the nuisance ; unless the acquittal in the former prosecution is a bai to any subsequent indictment. And it can be no bar certainly, unless the offences in the two prosecutions are identical.
If the former acquittal had been pleaded in bar, it must have been averred, that the obstruction, for which he stood indicted, was one and the same with that of which he had been acquitted. Indeed some of the authorities cited maintain, that a second prosecution may be supported for the very same offence. But this we do not affirm.
Now by recurring to the indictment of 1817, and comparing it with that of 1826, it will appear, that there is a substantial difference between them. The charge in the former is, that the plaintiff drew and deposited in and across the said road a quantity of large stones. In the latter the charge is, that he caused and procured to be erected and built a certain stonewall in and upon a part of the common and public highway aforesaid. There is a material variance between the two ; and he might well have been acquitted of the former, and convicted of the latter offence. It does not appear, nor could it, except by pleading with proper averments, that drawing and depositing large stones in and across the road, was the same act as the building a stone-wall on the road.
*485It being proved then, that the plaintiff actually built a wall upon the road, there was probable cause for the prosecution ; and therefore the verdict must be set aside and a nonsuit enured.