#### The State vs. Branum.

.The prosecutor is not liable for costs, under the statute, triiere, instead of a trial, a nolle prosequi is entered.

Appeal from Tell Circuit Court.

Hon. John J. Clendenin, Circuit Judge.

Hollowell, attorney general for the state.

Batson and Cravens, for appellee.

Mr. Justice Compton

delivered the opinion of the Court.

On an indictment, found in the Yell Circuit Court at September term, 1859, against William Aikin, for assault and battery, the name of Hiram Branum, the party injured, was endorsed as prosecutor. At a subsequent term, a nolle pros, was entered, and judgment for costs rendered against Branum. The case is brought here on appeal from the decision of the court below sustaining Branum’s motion in arrest of judgment, and the question is, was Branum liable for the costs?

In a certain class of prosecutions — to which this case belongs — the. statute requires the name of the party injured to be endorsed on the indictment as prosecutor; and then provides that if any indictment, so endorsed, shall be returned “ not a true bill,” or if the defendant be acquitted on the trial, the prosecutor shall be adjudged to pay the costs. Dig., chap, 52, secs. 89, 90, 91. The prosecutor, in the case before us, was *541clearly not liaftle. The entering a nolle pros, is not a trial within the meaning of the statute, or in any other sense, and unless there is a trial, where a true bill has been found, the prosecutor is not to be burdened with the costs — the law is so written, and we most apply it.

Let the judgment be affirmed.