*547CONCURRING OPINION OF CIRCUIT
JUDGE ASHFORD.There are but two questions presented for decision in this case, they being (1) Whether there was a defect of parties, 5for the non-inclusion of certain of the signatory parties to the bond given for the release of the attached property; and (2) Whether the sureties upon that bond were released by the voluntary discontinuance of the action, without the consent of the sureties, as to three of the five original defendants, — the action having proceeded to judgment against two only of those defendants. A subsidiary question, which'is really involved in the last above stated, is whether the trial court erred in permitting the defendant to testify, over objection, that he relied, in becoming a surety, upon the financial responsibility of two of the defendants against whom the suit was discontinued.
I concur fully in the view stated in the majority opinion that there was no defect of parties, and for the reasons therein given.
As to the second question, there is a great diversity of opinion among American courts, with abundance of authority to sustain a decision either way. And if the question were here squarely presented to the court, and necessary to be decided, I incline to the opinion that my vote would be cast in favor of the exoneration of the sureties, because of the voluntary discontinuance of the action, by the plaintiff, as against certain of the defendants, upon,whose financial standing, as above, defendant claims to have relied at the time of the signing of the bond. In a case such as would then be presented, it would be competent and necessary for this court to make a choice between the conflicting authorities. But, as I view the matter, the necessity of so choosing has been obviated by the text of the performance bond signed by the sureties. In and by that bond, the defendants, Young Chan and Lee Chan (against whom the judgment was rendered), are described as “partners doing business * * * under the name of Hang Fong Company.” The other three *548defendants are not named in the bond, and are not parties thereto. I regard the language above quoted as being the equivalent of a recital that the defendants Young Chan and Lee Chan were then the only partners in, and members of, the firm of Hang Eong Company. Such a recital, so voluntarily made and signed by the sureties, should estop them, in the view which I take of the matter, from now claiming that in signing the bond, they relied upon the financial responsibility of the other three defendants as against whom the suit was discontinued, or any of them. The same bond also describes the property seized, and the release of which the bond was given to effect, as being the property of the partnership; and the final judgment passed against the partnership, and the two individuals of which it was composed. This view also disposes of the subsidiary question above suggested. The admission of evidence in derogation of the recitals of the bond, should, I think, have been refused by the trial court. But although the evidence so tendered was received by the trial court, yet it is fair to that court to state that, in its written decision, a statement appears that the court does not rely upon that evidence in determining the case. It might well be suggested that, if the evidence referred to was not relied upon, there was not enough left to support the decision. ‘See Andre v. Fitzhugh, 18 Mich. 93.
I do not, however, regard the decision in Bierce v. Waterhouse, 219 U. S. 320, 55 Law Ed. 237, as being either decisive of this case, or as having decided any point which is here involved. The point, in respect to which my associates appear to rely upon that case, is, that an amendment of an original pleading, if it states no new cause of action, does not release the sureties upon a replevin or attachment bond given in the cause. But an attentive reading of the opinion persuades me that the federal supreme court did not so undertake to, and did not in fact, so decide in that case. It merely emphasized the fact that the point,' as there made, was already res judicata, as having *549been decided against tbe surety upon the replevin bond there involved, in an earlier action wherein said surety had been represented by his principal, namely, in Bierce v. Hutchins, 18 Haw. 511.
While I concur in the judgment, I feel that the decision should be restricted to the two points herein discussed, namely, the alleged defect of parties, and the estoppel of the defendant to deny the legal and reasonable effect of the recitals in the bond signed by him. Those recitals make it manifest that the defendant did not, in fact, rely upon the financial responsibility of any of the defendants in the attachment suit other than the two against whom the judgment was rendered, and that he suffered no prejudice from the discontinuance of that action as to the remaining three defendants.
Believing that it is unnecessary, in this case, to decide the point, I feel that this court should not now undertake to decide, whether or not the discontinuance of an action as to one or more defendants, done without the consent of the sureties upon an attachment bond given in such action, should be held to operate as a release and exoneration of such sureties, in any event, and without regard to questions of estoppel which, in my judgment, are decisive of the present case.