Page:Federal Reporter, 1st Series, Volume 5.djvu/127

 THB BWEDISH BABS ADOLFH. 115 �Choatb, D. J. In this, which is a suit of damage by col- lision, the claimaut of the bark Adolpb bas bad a decree dismissing the libel, with costs, and the libellant bas given notice of appeal to the circuit court. Before the expiration of the 10 days allowed by the practice of the court for the mardbal to retain the vassal in his custody, the claimant, on afSdavit by his proctor that he is unable to give bond for the value of the vessel, bas appliad to the court for an order direoting the marshal to reiease the vessel, or in the alterna- tive for an order direoting sucb reiease, unless the libellants shall give bonds to pay such damages as may be siistained by the claimant by reason of her detention pending the appaal, in case the libel sball be dismissed in the appellate court. The application cannot be granted consistently with the rights of the libellants and the practice of the court. �The arrest of a vessel in a cause of damage which is allowed to a libellant on giving the usual security for costs, is an inconvenience to which the owners must submit as one caused by the exercise of a legal right on the part of the plaintif, and unless the attachment is mala fide, or by such gross neg- ligence as to amount to bad faith, no damages can be recov- ered for her detention caused by such arrest. The Evangelis- imos, Swabey, 378; S. C. 12 Moore's, P. G. G. 358; TheD.S. e Peri, Lush. 543; The Strathnaver, L. B. 1 Ap. Cases, 58; The Active, 5 Law Times, (N. S.) 7T3 ; The Amelia, Moore's, P. G. G. The English cases in which damages for detention have in similar suits been allowed, are consistent with this rule, or if not cannot now be sustained. The Victor, Lush. 72; The Margaret Jane, L. E. 2 Adm. & Ec. 345 ; The Cheshire, Wetch, Bro. & Lush. 362. Suits for possession stand on a different ground. They are brought to recover the possession and use of the vessel. The John, 2 Hagg. 317; The Eliza, 2 Spinks, 34. �I see no reason wby the same principle does not apply to a libellant proseeuting an appaal in the circuit court in good faith. The decision of the court below is not of that conclu- sive character that bis suit thereafter ceases to be one prose- cuted in good faith; be bas simply failed to produce evidence ����