The Union

NELSON, Circuit J ustice. Upon the proofs, 1 am satisfied that the decree of the court below in favor of the libellants was correct and should be affirmed. The questions presented on the appeal relate more particularly to the amount of damages. It is to be observed, in the first place, that this is a proceeding in rem, the owners appearing to defend, as claimants, on entering into the usual stipulation. Therefore, no decree can be rendered personally against them, except as stipulators in the suit; and, of course, only to the amount provided for in their stipulation. Hence, the decree in this case, so far as it affects the owners personally, is properly limited to that amount, • and, also, to the two owners. Spofford and Tileston, who were the only parties to the stipulation. In other words, the decree as against them is for the $4.000 and costs. Tim question, therefore, as to any further liability, turns upon the validity of the subsequent order to redeliver the vessel into [537] the custody of the marshal, or, in default thereof, to pay into the registry the sum of $10,000. This order assumes that the discharge of the vessel from the seizure, and her delivery to her owners, was not absolute, but that she is still subject to the exertion of the power of the court for the purpose of satisfying any decree. No case has been furnished in which this power of the admiralty has been exerted; and, on principle, I do not well see how it can be maintained. The vessel, after being discharged from the a.rrest upon the giving of the bond or stipulation, returns into the hands of her owner, subject to all previously existing liens or charges, the same as before the seizure, except as respects that on account of which the seizure was made. She is also subject to any subsequently accruing liens or charges in the hands of her owner, or in the hands of any person to whom she may have been transferred. The redelivery, therefore, of the vessel, if permitted, or enforced, must necessarily be a redelivery subject to all these existing or subsequently accruing liens, and. also, to the rights of any bona fide purchasers, if a sale has in the meantime taken place. The complication and embarrassment growing out of the exercise of the power, if sanctioned, are apparent, and this, doubtless, accounts for the absence of any precedent in the books. In the present case the vessel has been sold, and has passed into the hands of the purchaser, and his title is, I think, undoubted. It is so for the reason that, on the discharge of the vessel, on the giving of the bond or stipulation, she is thereby discharged from the lien or in-cumbrance which constituted the foundation 'of the proceeding against her. the security taken being the substitute for the vessel. This view is strengthened by the provisions of the act of March 3, 1847 (9 Stat. 1S1). which provides that, in case of a warrant against the vessel, or other process in rem, it shall be the duty of the marshal to stay the execution of the process, or to discharge the property arrested, if the same has been levied on, on receiving from the claimant a bond or stipulation in double the amount claimed by the libellant. 6cc. According to the terms of the act. the tender of the proper security in time would seem to prevent even the. arrest of the vessel, and, of course, in such a case there could be no claim to a redelivery. 1 agree, that if there has been any mistake or fraud committed in entering into the stipulation, and the vessel has been improvi-deutly discharged, it would be competent for the court to relieve the parties concerned, •on an application, within a reasonable time, by ordering the vessel back into the custody of the officer. But that is wholly a different question from the one now under discussion. Then as to that part of the decree or order which requires the claimant to pay in a portion of the purchase money. If the vessel is not subject to the exercise of this power of the court, to be redelivered into the custody of the marshal, to be applied to the payment of the damages, it follows that the proceeds of a sale are not. They cannot, in this respect, be distinguished from the vessel herself. I must, therefore, reverse the decree or order directing the redelivery of the vessel, or the payment of the $10,000 into the reg. istry, and affirm the decree against the stip-ulators.