THE person on whose information a prosecution upon a recognizance to keep the peace has been instituted, is not required by law to be made a party to the prosecution, nor subject to pay the costs, upon the failure of the prosecution. It seems, therefore, that Ashby was unnecessarily made a party in the writ of error, and ought not to be subject to the payment of costs.

Wherefore, it is considered that the former judgment of this court, so far as it relates to the costs, be annulled and set aside, and that in other respects it stand unaltered and affirmed.