The republic. [volume] (Washington [D.C.]) 1849-1853, 1849-11-27

l Il
eminent declared to be broken and forfeited, and
OF suffering irreparable LOIS and damage and fur
ther, that the defendants have broken their contract
with the complainant; have failed TO construct and
finish the two ships ready for service by the first OF
October lS4S; have put but one into the service
and that not till the month of September, lS49 and
then unfinished, for want of coppering that they
have advanced, for the construction of the two
ships, the Ohio and Georgia, not TO exceed s 100
600, though the construction must have cost over
S600,000; and that the balance required to be adj
yanced has been realized from the Government,
and the earnings of the Falcon; that the two ships
which were To have been built by the LIST October
1919, have not yet been commenced; and, that the
complainant is in danger of having his contract
forfeited by the neglect and refusal of the defend
ants TO proceed and construct these Ships according
TO the requirements of the Navy Department and
that by reason OF the fraudulent conduct of Law and
Roberts, two OF the trustees, well as of the de-
PENDANTS, the property of the complainant on the
shlps constructed, as well as the benefits and adj
vantages of his contract with the Government, are
IN danger OF being lost and destroyed, and great
and irreparabe damage sustained, unless a re-
ceyer Is appointed to take charge of the ships their
freight, mail pay and their earnings, to copper the
Ohio, and comply, in all other respects, with the
conditions OF the compliments said contract
The bill then Prays for an account; that Law and
Roberts, two OF the trustees be removed from their
trust; that it be referred TO master to appoint two
other mt persons as trustees; and In the mean time
that receiver be appointed TO take charge Of the
contract with the Government, and possession Of
our suiPs OulO ana anu 10 unlSn tneln
der the direction of the court take charge of the
Falcon until the same can be supplied by another
to be built; and TO receive the earnings of these
ships and appropriate the same as the court may
and the ship registered in the name of the receiver
or of the trustees when appointed; that the
OF the defendants with the complainant be annuled,
and an account taken of their advances towards the
construction of the ships; and being refunded
by the complainant the property of said ships
may be transferred to him, subject only to the
mortgage of the Government; or, that specific
performance of their contract be decreed by the
court; and, that if they neglect refuse to pro-
coed, and forthwith construct said ships, that the
complainant be permitted to construct and COM
plete them at his own expense; and to stand in the
place of the defendants in respect to the benefits
and advantages Of the contract; that an Injunction
issue against the defendants TO restrain them from
conveying away the Falcon, and from interfering
with the Ohio and Georgia, and from conveying
away the Ohio under the fraudulent registry; and
from preventing the return of the Ohio and Falcon
to the port of New York; and that the receiver to
be appointed may be directed to proceed forthwith
and construct and complete the ships in fulfilment
of the contract with the Government, at the cost
and expense of the complainant, and out of funds
to be furnished by him for that purpose, and of
the earnings to be received from the employment
of the ships; and also that Law Roberts, and Wet
more, the defendants in whose names the Ohio is
registered, be restrained from conveying away the
same, preventing her return to the port of New
York and from interfering with the receiver APP
pointed to take charge of her
We have now stated at large the substance of the
bill, and grounds of complaint, arising out of al
legged attractions OF the contract of the 18th August
lS4T, by which the defendants bound themselves,
for considerations therein stated, to construct and
complete the five steamships, and, in all other
spects perform the duties and obligations of the
planant, in his contract with the Government
of the Goth of April of the year; and also the
charges and grounds of complaint against the trus-
tees of that contract, and of the ships to be con-
structcd and completed, ready for service, all of
he. Tl,t,N
mary interposition of the court to prevent great and
irreparable loss and damage to the complainant.
To this end we are asked-lst To remove two of
the trustees, and in the mean time, until others
appointed in their places according to the ordinary
course Of the court, to appoint receiver 10 take
charge of the contract with the Government and
the defendants; and also to take possession and
charge of the ships constructed in the process of
construction, and to complete the same and, in all
other respects, 10 proceed under the direction of
the court, and carry into complete execution the
terms and conditions of the aforesaid contracts and
ID To emf Join the defendants from interfering with
the receiver, thus appointed, with the ships,
earnings OF the ships, and from conveying away
either OF the same, so as TO prevent the receiver
from taking them into his possession. The grounds
upon which we arc asked TO remove the trustees
are;-lst. That the two, Law and Roberts, who are
also parties in interest in the construction of the
ships and in the fulfilment, in all other respects,
of thecomplainants contract with the Government,
have excluded their co-trustee, Mcllyaine, who
presents his interest in the ships, their earnings
and in the proper management OF the joint concern
from any participation in the same that they have
denied the compliments interest and right of his
trustee TO act in the premises, and arc collecting
and appropriating TO their use and benefit the
earnings of the said ships and moneys received
from the government for the mail service. ID. That
they have repudiated the trust, by frauduently
procuring the ship Ohio 10 be registered in their
own names, individually, and not trustees, ex-
Guiding the name Of the other trustee, Mcllvaine
| and 3D. That they have neglected and refused to
10 lain Off he
ncys received from the earnings Of the Falcon and
Ohio, including compensation for the mail service,
and are appropriating the same TO their own bene-
fit, in disregard of the trust These the grounds
| mainly relied on in support Of this preliminary
| motion TO remove the two trustees, and appoint a
receiver; and 1t is apparent that, IN order TO com
| prehend their force and effect for the purpose
| claimed, must first ascertain the precise powers
and duties belonging 10 the trustees under the
tract; and whether IL confers upon them those in
respect to which breach and misfeasance have
| been charged. They prescribed in the con
tract of the 18th August, and TO that therefore, we
must apply ourselves, in endeayoring TO ascertain
| their extent.
| Upon careful examination Of this contract, il
will be that the trustees have nothing 20 do
with the construction OF the ships either in respect
70 the contracts for building, the funds 70 be pro-
vided, or in the supcrntcndence and direction, in
any way, in the process Of construction and equip
! incnt. These are obligations and responsibilities
| resting exclusively upon the other defendants
| which they assumed upon themselves, and arc
bound to discharge; the principal consideration for
which Il their interest, stipulated in the assigned
Government contract, and in the other earnings VI
the ships while engaged in the mail service There
are other advantages provided for, which, doubtless
had their influence; but these the main consid-
| erations for the undertaking. These defendant.
took the place Of the complainant the contractor
with the Government, so far related 20 the con.
struction and equipment of the five ships; and were
subject only 10 the superintendenoe and direction
Of the naval constructor IN the employ of the Navy
Department. power reserved by the Secretary
The trust remains entirely passive, until the ships
or some one Of them, constructed, and ready e
enter upon the mail service il il then provided thai
the trustees 10 whom the Government contract hac
already been assigned, shall cause them to DC reg
lstered in their names; and that they shall therea
ter have the sole management and direction Of the
| ships, and Of their employment. &c, in the mai
service, in carrying freight and passengcrs-in col
Letting and receiving the earnings, including tho
moneys received from the Government-in the die
| bursement Oi expenses, and shall account and pay
over the nett earnings according to the directions
and in the proportions specially pointed out in the
trust. Now IN view Of the provisions thus referred
to- and some shall hereafter consider, we hav,
been unable 90 resist the conclusion that accord