McDonough v. Chu Chew Shong

TYLER, P. J.

—Action upon an indemnity contract to guarantee plaintiffs from loss by reason of their furnishing

[258]

bail. The facts show that on November" 27, 1934, one Lee Young was arrested and imprisoned under an indictment charging him with violating the act of the Congress of the United States known as the Jones-Miller Act, relating to the importing and concealment of morphine, also section 37 of the Criminal Code of the United States relating to a conspiracy to commit any offense against the United States, and section 174, title 21 of the Code of Laws of the United States, bail being fixed in the sum of $10,000. While imprisoned defendants in the action, so it is alleged in the complaint, requested plaintiffs to give or cause to be given in the federal court bail for the release of Lee Young from imprisonment and to procure his release pending the determination of the charges against him. It is further alleged that on or about December 6, 1934, defendants Lim Ben and Chu Chew Shong made, executed and delivered to plaintiffs a contract in writing by the terms of which they agreed to indemnify plaintiffs against any and ail liability which plaintiffs might suffer or incur by reason of the forfeiture of said bail or by reason of any violation of the conditions of any bail bond or undertaking. Pursuant to said agreement, plaintiffs caused the New Amsterdam Casualty Company, a surety company, to make, execute and file in the United States District Court a bail bond in the sum of $10,000 for the release of Lee Young from custody pending the determination of the charges against him. In order to procure the company to make and execute the bond plaintiffs indemnified said company of and from any and all liability created or arising under said bail bond by depositing securities exceeding in value the sum of $10,000 with the company. By reason of said bail bond Lee Young was released from imprisonment pending his trial on said charges. Prior to the time set by the federal court for his trial, Lee Young fled from the jurisdiction, without leave, and wholly failed to appear or present himself for trial and said bail bond was forfeited, and under and pursuant to the order of the court decreeing the bond forfeited plaintiffs paid into court the said sum' of $10,000 through the surety company. Thereupon this action was commenced by plaintiffs. The answer denied the execution of the agreement as alleged or that plaintiffs agreed with defendant Lim Ben that he should cause a bail bond to be given. Judgment went in favor of plaintiffs for the sum of $10,000 together with attorney’s fees