This was a prosecution instituted by husband and wife against Bridegroom, for surety of the peace. The defendant was recognized by a justice to the Common Pleas Court; but on his motion the case was there dismissed for want of a sufficient affidavit, and judgment rendered against the complaining witnesses for costs.
There has been no defect in the affidavit pointed out to us; but we suppose it was adjudged bad because it was in the alternative as to the fears of affiants of bodily injury to themselves, or some member of their family. An affidavit in this form has been held good. 8 Ind. R. 458.
If the motion to dismiss, or quash, had been properly sustained, the judgment for costs against the complaining witnesses would, under the provisions of the statute, and the circumstances of the case, have been wrong. 2 R. S. p. 501, § 27.
The judgment is reversed with costs.