umunnnsou v. THREE HUNDRED Tous or mor: om:. 41
sides to try the case in Massachusetts. The motion was denied, with
leave to file a supplementallibel to the same effect as the libel in Massa-
chusetts, and the supplemental libel was to be treated as an original
libel as of that date. Under this order the consignee is entitled tohave
his claimto damages adjudicated upon its merits. ~
The precise nature of this claim of damages is not explained; whether .
for a conversion of the ore by refusal to deliver, or merely for damages
for its detention. Treating the claim as based on the tender and demand
made on May 10th, I think no recovery can be had, either as for a. con-
version of the ore, or for its detention. The ore was at that time in the
custody of the law, under valid process in a pending suit, brought bona
fide in a court of competent jurisdiction. Mr. Marvel had full notice of
the suit, and easy means of availing himself of the simple remedies pro-
vided by law. The libelants were merely pursuing a supposed legal rem-
edyin the usual way. There was no intent to appropriate the goods to I
thelibelants’ own use in any other way than the lawmight adjudicate,
and they had an undoubted lien on the ore 'all the time; A refusal Tto de-
liver, under such circumstances, was plainly no evidence of conversion,
nor could it be made the basis of an independent suit of any kind. ‘ The
refusal was a legal mistake; but not such a legal wrong as to constitute a
basis for an independent suit in admiralty. The consignee wasbound
to seek his relief by appearing and defending in the original suit, and
was limited to the ample remedies therein afforded. Stiles v. Dcwis,1
Black, 101; Hall v. Waterbury, 5 Abb. N. C. 374. . ' ¢ .
That a libelant is not ordinarily responsible for the detention of a
vessel or other property while in the custody of the law under valid pro-
ceedings in rem, though the libel is ultimatelytdismissed on theimerits,
has been repeatedly adjudicated by the highest authority. In theZcase
of The Evemgelismos, 12 Moore, P. C. 352, where the wrong vessel was
sued for a collision, and was detained in custody, and also in The Strath-
mwer, L. R. 1 App. Cas. 58, 67, it was held that though such dam- ‘
ages, if recoverable at all, could be adjudged in the admiralty practice
in the original suit, yet no such damages for detention while in custody
could be given in the absence of "proof of male _/idea, or malicious negli-
gence in the libelant." In the present case there was neither bad faith,
malice, nor gross negligence. The same rule was applied by Judge
Cuoyrn in this court in the case of The Adolph, 5 Fed. Rep. 114, in de-
clining to order security for damages by detention after the dismissal of
the libel against a vessel still in custody, during the 10 days allowed for
appeal, on the ground that such inconveniences must be suffered incases 1
free from malice or bad faith, and that the rules providing for the release ‘
of the res on stipulation, or for its sale, were all the relief designed by
the rules of the supreme court against the hardship of arrest. In the
case of The Perri, Lush. 543, Dr. Lusmuorou also refused to order security
for damages during detention. . J
It is urged that the ore brought at the sale pendente lite about $900 ,
less than_ its market value; and that, as the suit was improperly brought,
the libelant in the original libel ought to ma-ke good that loss. But it is