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

until they are accepted and have entered upon the
performance of the mail service. Till then, by an
express provision of the Government contract, no
compensation is to be paid and the provisions in
the contract with the defendants regulating the re-
! celpts and disbursements of the earnings and the
duty OF the trustees 10 account therefor, are all
based upon the employment Of the vessels in this
service, There arc no joint accounts or joint in
terest spoken of provided for until that begins;
then the partnership interest commences and is
placed under the active management and control OF
! the trustees.
This conclusion is also supported by the general
structure and arrangement of the articles of agree
ment. The complainant brings into the common
stock the Government contract, which was, and 49,
doubtless, regarded very valuable; the defend
ants, the steamships; and when accepted in fulfil
ment OF the contract, the common interest COM
mences, and the whole of the capital, Government
contract and ships, and the management of the
same, are placed under trustees. This is the foun
datlon OF the arrangement between the parties.
The additional provisions relate chiefly to the man
ner OF carrying on the enterprise, for the common
benefit of disposing of the profits, and the winding
up the concern at the end of the partnership. The
complainant might have provided for accrujng
interest in the ships, and also for the yestng of the
title TO the same in the trustees, while in the pro-
cess of construction, thereby acquiring additional
security for the fulflment the part of the defend
ants but no such provision has been made. He
chose TO take their personal responsibility, and very
naturally, as they had become his security to the
Government for the performance of this very SER
vice IL IS but just to add, that for any thing APP
pedrlllS IN tnc case or disclosed the hearing,
they are quite competent and able to perform their
engagement. The act of the parties, in securing
the advance made by the Government towards the
construction of the two ships by mortgage upon
them, was very strongly urged, on the argument,
against this construction. II executed in
the name OF the three trustees. The act Of Con-
gress provided that the advance should be Sc
cured by lien on the ships, in such manner
the Secretary of the Navy should require. With
all our respect for the judgment and intelligence of
that officer, we must still construe the contract and
give effect TO it, according to the conviction of
own judgments. No doubt all parties as it respects
the Government, are stopped from controvcrtinp
the validity of the lien. II the ships should never
be accepted, and the advance not refunded by the
discount OF the mail compensation, they remain in
the hands OF the defendants subject to the lien, and
sale under the mortgage, unless they discharge
il by payment. The mode of executing the mort
gage or the mortgage itself, cam in respect, nor
on any principle or rule of construction, vary or
modify this contract of the I7th of August That
is between different parties, and involves different
interests and rights. The conclusion at which we
have arrived upon this branch of the dsposes Of
the question as to the removal of the trustees; and
as a necessary consequence the appointment of
receiver, and the granting of injunction. 1t
also dlsposes OF the question arising upon the
registry of the Ohio AS it has not vet come
under the trust, the registry was properly en-
tered in the names of the builders and owners. In
respect to the delay in the construction and equip
ment OF the steamships, and the action of the court
prayed for in this preliminary proceeding, found
cd thereon, 1t Is sufficient answer to say, that
from the atidavits read upon the hearing, it ap-
pears that it has been assened to and acquesced in
by all the parties concerned and has been occa-
stoned by the very great enlargement of the ton
mage and capacity of the ships, not only assented
to by the complainant, but adopted by the defend
ants upon his urgent solicitations. Four of the
ships provided for in the contract to be of the
size OF fifteen hundred tons burden and machinery
in proportion. The two nearly completed-the
Georgia and Ohio-thc latter, entirely, with the
exception Of copperng, are almost equal in tonnage
to the four, with machinery in proportion; and, as
stated in the opposing affidavits, will cost an
amount nearly equal to the cost of the four. Some
indulgence on the part of the Government might
therefore be naturally expected. The complain
ant is as deeply interested in the enlargement as
the defendants; the Government were, also, inter
ested, of the objects OF the act of Congress-
providing for the construction, was an eventual
employment of them in the naval service of the
country; for this reason the act provides that they
shall 'be constructed TO render them convert
bic, at the least possible expense into
OF the first class. The contract contains similar
provision and, also for the taking of them into the
exclusive service of the Government. In respect
to the preliminary arrangements with the Govern
ment, by which the Ohio and Falcon employed
IN the mail service between New York and New
Orleans, and Havana and Chagres, and the equi-
ties of the complainant in the earnings of these YES
sels questions arising out of them inquirable
into in this stage Of the proceedings These will
properly up when the case is ready for a final
hearing on the pleadings and proofs. The motion
for a receiver and injunction must be denied