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

Alsnc ard Baltic under the deeds OF trust or hattel
morsges because the en for such advances has been
should be- fully cancelled by the Secretary of the Ma
Wy who has as they sllege withheld from the owners
Of suon steamships amourt due TO them for mail ser
vice recdered 70 the government much larger than that
nov claimed by the Uted states, and they produce
cory OF ar opinion Of Mr.. Attorney General Black,
dated June 1, 1867, and given at the request OF the
Secretary Of the Navy in which, after elaborate
mratop, he concludes that upon the case presented 10
the government than that presented upon this mo-
tom, the amount now claimed by the se,msnp
CS@ps was Improperly and without Ss nonon OF sSs
Attorney General, cannot but assent to his conclusion
that the deductions made from the sums claimed oy the
Steamship Company for mail service have mol oeen To-
gally made Perhaps might properly refuse the injunc
ton In this without stating any reasons for my udg
bcrae opinon OF the learned Attorney General Ger
tanly q court Of equity should require very clear and
satisfactory evidence the Attorney General bad mis-
taken either the facts the law of the before inter
posing by Injunction 70 prevent the due execution of the
bon.. cSor 10 enforce his adjudicsted and admitted
rights upon the ground that the execution of such pro-
cess snd the enforcement OF such rights might possibly
would probably prevent the government taking
legal other proceedings 10 enforce hugate claim
which its highest law officer had deliberately declared to
the parties and their COUNSEL state some the rea
sozs on which base my opinion. II IA unnecessary
trsot for the building or the stesmships which
have been known the steamships OF the Col.
Inns Line, or even to give at length the deeds of
trust chatel mortgages under which the United States
claim has been contended that the bill in this
be sustained the ground that there has been
faiure to perform the agreements contained 10 such
original contract by which the government has become
entitled 10 uncertain by way Of damages which
be determined by the verdict Of jury alone and the
Claim, now made by the government, is based entirely
upon tae assumption that there 10 balance due the
United States for the moneys advanced under deeds
OF trust or chatte mortgages These deeds OF trust
severay intended as 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 such ships in such
the Secretary ofthe Navy should require they
have been regarded as mortgages, as they in sub
stance. and Is alleged in the bill that they have been
duly and annually filed in the Office OF the Register OF
New York, to make them valid aud continuing lines
ID chsttei mortgages, against Judgment creditors
these deeds of trust, the then owners of the steam
ships Pacific (since totally lost at seal and
Atlantic did g bargain, sell and convey" the SAID
steamships with all their tackle apparel and furniture,
to the trustee therein named upon trust nevertheless
that the said owners TO retain the OF
steamships ard employ them in carrying the mails, &C..
and il Ster the expiration of one. year from
mencement OF their employment in the mail service,
der the existing contract wi the United States being
CURED thereto writing by the Secretary OF the Navy,
they should fail orepay in money to refund out Of their
compensation tor uai service for year,
value Of said vessels before the raon of year
they should ne taken into the OF the nted states
sucn outstanding balances might he due account OF
such advances and the interest thereon, then the said
trustee being required do by the Secretary of
Navy OF the Uneo states should after vertng for
six months in two new pepers published ia tie city Of New
York. the time and place Of such SALE proceed sell
public auction foe cash, the said steamships &c and
OF rfOCteCS OK nrS OF
cutting such trust and secondly, such unsasd balances
Of adv &c. This is the substance of the provisions Of
this deed Of trust so far as the same appears to be
material 10 the questions presented upon the
ton ard the provisions OF the decd Of trust in regard to
the Baltic, though somewhat different in form and
language, are in substance very nearly the By
these provisions the rights and the remedies OF the United
States against these vessels precisely declared and
limited and although il may now be seen that
mary proceedings for enforcing the of these
advances by the sale OF the ships mortsaged would be
more beneficial TO the United States IL its claim for the
balance dJnaIded could be sustained.
Of equity cannot reform these contracts and introduce
visions winch were never asseuted TO by the parties or in
tended By them TO be embraced in such contracts The
United States claim that there balance 500 due
for advances made under these deeds of uus and the do
Pendants ipsst that there is larger amount due TO them
for mail services in the year ending the 3st Of March,
1857, which they entitled to set off, and which the 60
vernnent is legally and equtaby bound 10 seton against
the balance now claimed, such set OFF may
necessary, in ORDER TO extngush their alleged indebted
hand insists tina, the secretary OF the Navy has fully paid
for the mail service rendered and that nothing now due
therefor The mail service Tor which npensaon Is
claimed agreed 10 be rendered in and by
made with the Secretary OF the Navy, by which Collins
and his associates agreed to build certain seamerseach
10 be al least thousand tons burden and thou
sand horse with such steamers 10 carry the
mail between New York and Liverpool, according TO the
OF such contract The mail service required TO be
performed by this contract and the compensation therefor
Afterwards increased, in pursuance OF subsequent
Congress- and the five steamers provided for in the
contract IL conceded, built by Collins and his
socates and those claiming under them and were accept
ed by the Navy Department as built in compliance with
the contract Unfortunately, however, two OF these
have been lcs at sea No fault has been i'm
puied Collins or his associates As having caused or con
ibuted either OF these losses and II by reason
OF the loss Of the Arctic, and the unexplained delay In
the arrival Of the Pacncustyng the belief that the lat
vessel had gone down at sea-tha the owners of the
remaining found themselves unable 10 trans
port the mails 10 and from Liverpool and New York IN
s snSs m thai as ss were w SnSsr these
cums,ances that Mr. Collins, on the l7th March 1856
ed permisson TO take steamship 70 supply the place Of
the Pachc and asking Geographic despatch IN reply
Afayoraoe answer was by telegraph and on
Secretary Of the Navy duplicate OF his letter OF the l7tn
informed him that, in accordance with his (hc Score
tarys) elcgraphic despatch, they had chartered the
Ericsson In tue letter he requested the Secretary
write him confirming the teeraphc despatch On the
oath Of month and reply to Mr. Collins letter
Of the ga the Secretary having been thus apprised Of
the charter Of the Ericsson for the purpose Of supplying
The pare OF he Pacific n the transportation OF the mail
wrote Mr.. Collins az follows
Navy Drrarr~gSr. March q. ls5S.
SIN In rery 70 your letter Of The "a ms The depari1sn
inst CONSUMING 70 your suPpyns the place OF the Pacific by
Very RESPECTFULLY, yolr obedien, servant sg,,,,,,
Elk co,tiys. ESQ No S wall street New YORK.
on the 18th April 1856, Mr. Collins again wrote to the
Secretary OF the Navy, advising him OF the launch OF the
Adrsic ard asking permission IN Tie event Of the non
place uui the Adriaic should be ready for and on
the 2si Of the same nonth the Secretary wrote the FOL
lowing reply
mel ca.en. % he sabstuion II anotber s-aShp 10 he
place &C he Pacific. supposed have been lost until he
Adriatic - ready 10 be psced on the line
Very respectfully. your Obedien servant
fsienedl J. G.. DOBBfN.
EK CoiLrSs Esq. No. 6 wall street. New YORK.
This correspondence is in my judgment, sufficient evil
the unqua fed aud unconditional consent OF the
Secretary q the Navy that the Ericsson other
vessel competent TO the performance 0f the mail
service required CT vessel Of the Collins line, should be
substituted for the lost Pacific the performance Of mail
service only for the trip referred 10 in the rst letter
CT Mr. Collins, and the telegrsphc despatch 10 reply but
also Until reasonable time 70 prepare Adratc Tor
had ella Il IDLE that the Secretary 4
tended require that the tervce should be performed
steamship built in pursuance 81 tho original contract for
such mail service equal In all reerecs 10 the other
vessels o. the Collins line for Is safe 10 assume, upon
The sfidaviis read and the adm ssions male by the
District Attorney upon the hgument-Snd might
almost be assumed a matter Of public his.
tory Of which the Court bound 70 take
judicial notce-tbat the Secretary, well 40
Mr.. Collins well Knew such vessel could be obtained
for The service IT, them was intended 70 qualify such