c30:No. 26

ACHESON, Circuit Judge
(dissenting). I dissent from this reversing judgment. The plaintiff below (the Security Trust Company) made out a clear, prima facie case. The defense set up was that the defendant (Robb) was released from liability on his indemnity bond because the plaintiff had declined to execute the supersedeas bail bond tendered by the defendant, and had interfered with the prosecution of the writ of error which the defendant had sued out. Now, the plaintiff did decline to execute a supersedeas bond, as principal therein, and in connection therewith a judgment bond of indemnity to the proposed bail in error, the City Trust, Safe Deposit & Surety Company of Philadelphia. In its explanatory letter of January 31, 1901, the plaintiff declared its willingness to sign a bond which would “afford Mr. Robb an opportunity to litigate the question to- the utmost,” but declined to assume additional responsibility unless indemnified; and later, on the same day, in an interview with the representative of Mr. Robb, the plaintiff offered to execute the bail bond as prepared if indemnified, but this offer Mr. Robb rejected. It is plain to me that until the presentation of the prepared papers on January 31st the plaintiff did not understand the nature of the proposed obligation it was asked to assume. The plaintiff’s request for indemnity, I think, was entirely reasonable. But, assuming that the plaintiff previously had agreed to execute the appeal bond as tendered, how was the defendant damnified by its refusal to sign? That refusal did not prevent Mr. Robb’s taking a writ of error with supersedeas of execution. The signature of the Security Trust Company to the appeal was not at all necessary. Upon no just principle, then, could its refusal to sign operate to release the defendant Robb. It is idle to say that there was no time to prepare and perfect a new appeal bond. The bond was not due until February 1st, and Trenton is within an hour’s ride of Philadelphia. . In fact, Mr. Robb did sue out a writ of error, which, if prosecuted with success, would have secured to him a writ of restitution. Did the plaintiff (the Security Trust Company) so interfere with the prosecution of the writ of error as to release the defendant (Robb) ? Here resort must be had to the correspondence between the attorneys of the respective parties. Mr. Harned’s letter to Mr. McCarter was as follows:
Camden, N. J., Apr. 6, 1901.
Robert H. McCarter, Esq., Counsellor at Law, Newark, N. J. — Dear Sir: It bas just come to my attention that you are prosecuting a writ of error in the name of the Security Trust Company in a suit of the Fort Wayne Electric Company against that Company. You are probably aware that in this matter execution was issued, and the defendant Company compelled to pay the judgment, amounting in all to some §15,000. Your use of the Trust Company’s name, as you well know, is without authority, and I am directed by the Company to notify you that, unless you, at once, secure them by the payment of the money already advanced by them, or by a deposit of securities amply sufficient to reimburse them, they will move before the Court of Errors for a dismissal of your writ upon the ground that you are using the name of the Security Trust Company without their authority or consent. •Failing to hear from you, I shall, at once, take steps as above indicated.
Yours truly, John F. Harned.
To this letter Mr. McCarter made the following reply:
Newark, N. J., April 13, 1901.
John F. Harned, Esq., Camden, N. J. — Dear Sir: In reply to your favor of April 6th I beg to say that you are mistaken in the statement that my use of the Trust Company’s name was without authority, but inasmuch as that authority now appears revoked by your letter, I am of course compelled, against my judgment, and contrary to my views of what is proper, to announce that I will not further prosecute the writ of error to which you refer.
Yours very truly, Robert H. McCarter.
The purpose of Mr. Harned’s letter undoubtedly was to secure his client from loss arising from the delays of litigation. To his reasonable call for security there was no direct response. Mr. McCarter’s answer ignored the subject. Mr. Harned’s letter was by no means a peremptory order to dismiss the writ of error. Mr. McCarter did not then regard it as an absolute order to dismiss, for he wrote merely that he would not “further prosecute the writ of error.” The utmost that can be said fairly is that Mr. Harned’s letter was a notification to Mr. McCarter not to further prosecute the writ of error unless the trust company was reimbursed the money it had been compelled to pay, or was secured against loss. Mr. McCarter was not directed by that letter to take any affirmative action in the pending suit in error. Mr. Harned reserved to himself positive action. This, it seems to me, is the reasonable interpretation of the correspondence; and, evidently it was so understood by the parties themselves. Both sides avoided immediate action. The matter was allowed to rest for a period of six months. Then, on October n, 1901, Mr. Robb’s attorney, without communicating with, or giving any warning to, the Security Trust Company or its attorney, went into the Court of Errors and Appeals, and procured an order dismissing the writ of error. The order, it is true, was made as of April 13, 1901, but it was procured on the nth of October. The indorsement upon the order of dismissal is, “Filed October n, 1901, as of April 13, 1901.” In the circumstances, the procuration of that order must be regarded, I think, as the voluntary and deliberate act of Mr. Robb. He cannot, in my judgment, justly claim that this order of dismissal, made upon the motion of his own attorneys, released him from the obligation of his bond here sued on.
As there was no conflict of evidence in respect to the material facts, the court, I think, rightly directed a verdict for the plaintiff.

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