The papers submitted by the surety Wm. H. Florence, upon this application, disclose a very hard ■case, but no reason for discharging the judgment entered .against him upon his recognizance. We have repeatedly held since People v. Coman (5 Daly, 527) that such an application as this is premature before the prisoner is produced, stands trial, .and is either convicted or acquitted, or procures a nolle proseguí to be entered.
The magnitude of the obligations which the surety has incurred in other prosecutions of the prisoner, freedom from complicity in his flight, vain efforts to find and rearrest him, do not affect the right of the People to enforce the judgment entered upon the recognizance. The prisoner is now at liberty as a fugitive, defying the laws, because the surety intervened to relieve him from imprisonment pending the trial; and the surety has no one but himself to blame if his confidence was misplaced. This is not a question of sympathy, but of substantial right, and the motion should be denied.
Charles P. Daly, Oh. J., and Tan Hoesen, J., concurred.
Application .denied.