¶1The defendants are appellants from a judgment against them, as principal and sureties, in a bond to the Governor of the State, for the good behavior and appearance at court of the principal. The District- Attorney entered a nolle prosequi against the principal, notwithstanding which, judgment was given against the defendants; the court" being of opinion, that it had power to control the prosecuting officer of the State in this respect. In our opinion it erred.
¶2The State, like all other plaintiffs, has the undoubted right to dismiss all suits brought by it; and this is in the discretion of the attorney who prosecutes for it, and who is in possession of all the facts which render the dismissal of the suit advantageous to the State. We do not wish to be understood to say, that if, during the trial of a defendant, and after evidence given, the prosecuting attorney, to prevent a verdict against the State, offers to enter a nolle prosequi, the defendant could not resist the application, and insist on a verdict. The sureties, having a right to avail themselves of all the pleas which their principal may urge, were entitled to the benefit of the nolle prosequi, filed by the prosecuting attorney.
¶3It is, therefore, ordered, that the judgment be annulled and reversed, and that there be judgment for the defendants.