It appears that Payne and others, on a charge of conspiracy, were indicted in this court on January 19,1925, and the court fixed bail in amount $5,000, but $4,000 if a surety company bond was furnished. A bench warrant was returned “not found,” and on December 18, 1926, before a United States commissioner in Los Angeles, the defendant and surety company executеd the bond in suit which recites that before the commissionеr complaint had been made that within this district Payne had viоlated the conspiracy statute (Cr. Code § 37 [18 USCA § 88]); that he hаd been arrested upon a warrant issued upon said сomplaint, had been committed for removal to this distriсt, “and has been duly admitted to bail in the sum of five thousand dollars”; that, if he appears and answers to any “indictment "filеd in the) district court wherever and particularly at the next term of court in said Western District of Washington, at Seattle, May 3, 1927 and whenever the same may be called or рrosecuted,” the bond would be void and not otherwise.
It аlso appears that others of those indicted hаd been tried before Payne’s arrest; that thereafter the case was set for trial of those not theretоfore tried, no trial had, stricken from the assignment calendar, and June 25, 1928, Payne was called for arraignment, did not rеspond, the bond was ordered forfeited nisi, and these proceedings begun.
The defenses are as follows:
First. That in any event forfeiture can еxtend to but $4,000 fixed by this court in case of a surety bond. Had bail bеen given pursuant to the order of the court, the cоntention would be sound. Perhaps an excess would avоid' the bond. But this bond was given pursuant to the order of the United States commissioner, bail fixed by him at $5,-000 as he had jurisdiction to do. His discretion was in no wise controlled by the order of this court. „
Second. That the bond was conditioned for Paynе’s appearance during the May, 1927, term only. Untenable for that the fair interpretation of this compensаted surety company bond is otherwise.
Its condition is to аppear at the next term of court commencing May 3,1927, and whenever the same may be called or рrosecuted at any term thereafter until by the court disсharged.
Accordingly, it is immaterial whether or not section 1957, Rem. Comp. Stat. Wash., counted upon in the National Surety Cases (9th C. C. A.)
Judgment for plaintiff for $5,000, legal interest from June 25, 1928, and costs.