The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1858-04-02


Atlantic and Baltic under the deeds OF trust hsttel
MORTGAGES because the en Tor such advances has been
or should be- fully cancelled by the Secretary OF the Ma
Wy who has Is they sllege, withheld from the
o suon steamships amoutt due 10 them for mail
nov Gained by the Urnea states, and they produce
copy OF an opinion Of Mr.. Attorney General Black,
ns and a. the aSess Of .s ne
mraton he concludes that upon the case presented 70
him and which certainly not stronger one against
the government than that presented upon this mo-
tom, the amount now claimed by the Steamship
Company was Improperly and without auth or
Attorney General, cannot but assent TO his conclusion
that the deductions AIDE from the sums claimed by the
Steamship Company for mail service have not been le
gsliy made Perhaps might properly refuse the injunc-
ton 10 this without stating any reasons for my judg
bSsss oSoOn % the Attorney genera and ce
taniy court Of equity should require very clear and
evidence na ne . OF sS Sones mo mis-
posing by Injunction TO prevent the due execution of the
hnai process Of another court, issued in behalf Of
honest creditor TO enforce his adudicated and admitted
rights upon the ground that the execution of such pro-
cess snd the enforcement or such rights might possibly
wouid probably prevent the government taking
legal other proceedings 10 enforce or gate claim
which its highest law officer had deliberately declared TO
to the parties and their COUNSEL state some Of the rea
soIs on which / base my opinion. II Ia unnecessary
to state IN detail the terms OF tho original con
tract for the building OF the steamships which
have been known as the steamships OF the Col.
Inns lne, or even to give at length the deeds of
trust or chattel mortgages under which the United States
now claim. has not been contended that the bill this
be sustained the ground that there has been
q fAure to perform the agreements contained In such
original contract by which the government has become
entitled TO an uncertain by OF damages, which
be determined by verdict jury alone aud the
claim, made by the government is b ssed entirely
upon toe assumption that there 10 q balance due the
United States for the moneys advanced under such deeds
OF trust chatte mortgages These deeds OF trust
sevesy intended security for the advances made
der them In pursuance OF an act OF Congress authorizing
such advances to be made and requiring the repayment
thereof secured by loan on such ships in such
the Secretary Of the Navy should require they
have been regarded as mortgages as they arc in sub
stance ana Is alleged in the bill that they have been
duly and annually filed in the Office OF the Register Of the
city and county Of New York required by the laws of
New York, to make them valid aud continuing lines,
AZ chattei mortgages, against judgment creditors
and subsequent ncumbrnnces BY the hrst of
ships Pacific (since totally lost at seal and
Atlantic did :. bargain, sell and convey" the said
steamships with all their tackle apparel and furniture
70 the trustee therein named "upon trust nevertheless
that the said owners 20 retain the OF
steamships, ard employ them in carrying mails &C.
and after the expiration of one, year from tue COM
mencement OF their employment in the mail service
der the existing contract wi the United states being re-
qured thereto IN writing by the Secretary Ct the Navy
they should fail TO in money 10 refund
compensation for ma service for year. ont CT the
vaue Of said vessels IL before the raton of year
they should De taken into the service OF the United states
sucn outstanding balances might he due account Of
such advances and the interest thereon then said
trustee being required 30 10 do by the Secretary Of
Navy OF the Uned states, should after vertsing for
SIX months In TWO new spepes published ia the city OF New
York the place Of such sale proceed 70 sell at
public auction, foe cash. the said
OF prpCeeCS OF salQ
cutting such trust and secondly such unsatstd balances
Of c This the of the provisions OF
this deed Of trust 80 far as the appears to be
material TO the questions presented upon the
ton ard the provisions OF the decd Of regard
the Baltic, though somewhat different in form and
language, are IN substance very nearly the BY
these provisions the rights and the remedies United
States against these vessels precisely declared and
limited; and although may be that
mar proceedings Tor enforcing the repayment of these
advances, by the sale OF the ships moreaged would be
more beneficial to the United States if It's claim for the
balance demanded could be sustained a
OF equity cannot reform these contracts and introduce pro-
visions which were never asseuted TO by the parties or
tended by them TO be embraced in such The
United States claim that there is balance Of 81 500 due
for advances made under these deeds trust and the do
Pendants pskt that there Is larger amount due TO them
for mail services the year ending the 3ls Of March,
1857, which they entitled to set off, and which the 60
vernmen legally and equably bound 10 set of against
the balance now claimed tar such set OFF may be
necessary, in order TO exnguish their alleged indebted
ness to the government The government on the other
HAND the Secretary OF the Navy has fully paid
for the mail service rendered and that nothing due
therefor The mail service Tor which npensation is
claimed was agreed TO be rendered in and by
made with the Secretary OF the Navy, by which Collins
TO be OF at least thousand burden
sand horse powerand with such steamers carry the
mail between New York and Liverpool according TO the
terms OF such contract The mail service required TO be
performed by this contract and the compensation therefor
Afterwards increased in pursuance Of subsequent
acts Of Congress- and the five steamers provided for the
contract, il conceded built by Collins and his
soates and those claiming under hem and were accept
ed by the Navy Department as built in compliance with
the contract Unfortunately, however two of these
steamers have been lcst at sea. No fault has been i'm
pued 10 Collins or his associates a. having caused or con
ubuted 10 either OF these losses; and II by
OF the loss Of the Arctic, and the unexplained delay in
the arrival Of the Pacncjusyng the belief that the lat
vessel had gone down at seathat the Of the
remaining steamers found themselves unable To trans
port the mails TO and from Liverpool and New York in
snSS thai as ssrScs s uSSer these c Ge
cumstances tina, Mr.. Collins, the 18th March, 1856,
ed permssion to a steamship supply the place of
the Pacific, and asking Geographic despatch IN reply
Aayorable communicated by telegraph and
the 22d OF the same month Mr. Collins enclosed TO the
Secretary OF the Navy duplicate OF his letter OF the lh
and informed him that, in accordance with his he Score
tary's) teegraphc despatch they had chartered the
Ericsson In tue letter he requested the Secretary
10 write him confirming the teegraphc despatch On the
oath Of the MONTH and In reply TO Mr.. Collins letter
Of the 22d the Secretary having been thus apprised Of
the charter Of the Ericsson for the purpose Of supplying
the place Of the Pacific in the transportation mail
wrote Mr. Collins az follows
NAVY DrpAur~gSr, March - is5s.
SRI In rely 70 your Letter Of The 20 ns The depar;men
inst 70 your the place OF the Pacific by
substituting aDOhef steamship
VERY respectfully yolr obedeni servant dS,.,v
Elk coIISs. Fsq' No C. wall street, New York
on the 18th April 1856, Mr. Collins again wrote to the
Secretary Of tine Navy, advising him OF the launch Of the
Adrsuc and asking permission, the event OF the
arrival OF the Pacific n substitute another her
place until the Adriac should be ready for and
the DIST Of the same month, the Secretary wrote the fol
Nav Drr,R1vl.s1. April q; 1870.
ca.ent. substitution Il another s-aushp 10
place oi he Pacific. supposed have been lost; until he
Adrisfic IL ready ~ be plsced on the lfne.
Very respectfully, your obedieni servant
Nsignedl T.. C. DOBBfN.
r. X collins. Esl., No. J5 Wall street. New York.
This correspondence IL, In my Judgment, sufficient evil
dence the unqua fed and unconditional of the
Secretary Of the Navy that the Ericsson other
vessel competent TO the performance OF the mail
service, required CT vessel Of the Collins line, should be
substituted for the lost Pacific the performance
service not only for the trip referred 10 IN the s letter
CT M Collins and the teegrsphc despatch reply but
also until reasonable time 70 prepare the Adratc for
had elapsed. II is die n SUPPOSE that the Secretary
tended require that the service should be performed
steamship built In pursuance of the original contract for
such mail equal In all respects 70 the other
vessels o. the Collins line for Is safe 10 assume upon
The sthdaviis read and the adm ssions made by the
Dsiric, Attorney upon the argument-and might
almost be assumed ne a matter Of public his
tory o. which the Court bound IN take
judicial notice-thai the Secretary, M well ~
Mr. Collns, well knew such vessel could be obtained
The service IT, then, was intended 70 qualify such