Opinion of the court. laden with lumber, and her deck load consisted of three tiers of spars about as high as the bulwarks. She had a good light in her forestays eight feet above the main deck, and she had an experienced seaman at the wheel. One lookout was stationed on the larboard side, eight or ten feet forward of the mainmast; and the mate, who was also on the lookout, was on the starboard side, just forward of the foremast; and it should be remembered that the vessel was upon the starboard tack. None of these facts are successfully controverted; but the argument is, that the lookouts were not properly stationed, and it is not to be denied that, in general, some position farther forward would be a better one to secure the object for which lookouts are required. IV. Reference, however, must in all cases be had to the circumstances, and especially to the course of the respective vessels, and to their bearing in respect to each other. Considering the situation of the vessel of the libellants, assuming it to be such as the libellants suppose, it is by no means certain that the position of the lookout on the larboard side was not as favorable to discover the vessel of the libellants, when she went into stays and came about as could have been chosen, and it is quite clear that the position of the mate while his vessel had her starboard tacks aboard was one. without objection. They both testify that they were attending to their duty, and there is no ground for doubt that they would have seen the other vessel in season to have avoided the collision, but for the intense darkness of the night. V. Fault is also imputed to the Morning Light by the libellants, because she did not during the alleged intense darkness "lie to," or shorten sail and check her headway. Steamers navigating in thoroughfares are always required, whenever the darkness is such that it is impossible or difficult to see approaching vessels, "to slow" their engines or even to stop or back, according to the circumstances, and no reason is perceived why the principle of the rule in that behalf may not be applied in a qualified sense to sail vessels where they are navigating in crowded thoroughfares, and when the darkness is so intense that vessels ahead cannot be seen.* Opinion of the court. Decisions to that effect may be found, and no doubt they are correct, as for example, it was held in the case of the Virgil, that the defence of inevitable accident could not be maintained where it appeared that the vessel setting it up was sailing with a strong breeze and under a full press of canvas and with her studding-sails set, although it appeared that it was very dark and hazy at the time of the accident. But such a restriction can hardly be applied to sail vessels proceeding on their voyage in an open sea. On the contrary, the general rule is that they may proceed on their voyage although it is dark, observing all the ordinary rules of navigation, and with such additional care and precaution as experienced and prudent navigators usually employ under similar circumstances. They should never under such circumstances hazard an extraordinary press of sail, and in case of unusual darkness, it may be reasonable to require them when navigating in a narrow pathway, where they are liable to meet other vessels, to shorten sail if the wind and weather will permit. The weight of the evidence in this case shows, that the wind during the greater portion of the night was perhaps a five or six knot breeze, but it is highly probable that it was much lighter during the fog showers and the period of the extreme darkness which immediately preceded the collision. Neither vessel had any studding-sails, nor any greater press of canvas than is usual in such a voyage, nor is it by any means certain that either had any more sail set than was reasonably necessary to keep the full control and proper management of the vessel. They both had competent officers on deck, good lights in the rigging, and as we think sufficient lookouts, and it appears that neither was guilty of any negligence or unskilfulness. Some of the witnesses for the libellants deny that the night was as dark as is represented by the witnesses examined by the respondents, but those denials came chiefly *The Rose, 7 Jurist, 381. The Virgil, 2 W. Robinson, 202. † Id. 1174. Opinion of the court. from those who signed the protest shortly after the disaster, which in substance and effect confirms the respondents' witnesses, and fully justifies the finding in that behalf in the court below. Reasonable doubt cannot be entertained that it was intensely dark at the time of the collision. Both the courts below were of that opinion, and we fully concur in that view of the case, and think it sufficient under the circumstances to express that concurrence without reproducing the evidence. VI. Reported cases where it has been held that collisions. occurring in consequence of the darkness of the night, and without fault on the part of either party, are to be regarded as inevitable accidents are numerous, and inasmuch as there is no conflict in the adjudications, it is not thought necessary to do much more than to refer to some of the leading cases upon the subject.* Where the loss is occasioned by a storm or any other vis major, the rule as established in this court is that each party must bear his own loss, and the same rule prevails in most other jurisdictions.† Different definitions are given of what is called an inevitable accident, on account of the different circumstances attending the collision to which the rule is to be applied. Such disasters sometimes occur when the respective vessels are each seen by the other. Under those circumstances, it is correct to say that inevitable accident, as applied to such a case, must be understood to mean a collision which occurs when both parties have endeavored, by every means in their power, with due care and caution, and a proper display of nautical skill, to prevent the occurrence of the accident.‡ When applied to a collision, occasioned by the darkness of the night, perhaps a more general definition is allowable. Inevitable accident, says Dr. Lushington, in the case of The Europa,§ must be considered as a relative term, and must * Stainbach et al. v. Rae et al., 14 Howard, 538. † 1 Parsons' Merc. Law, 187; Woodrop Sims, 2 Dodson, 85; The Itinerant, 2 W. Robinson, 243. The Locklibo, 3 W. Robinson, 318; The Pennsylvania, 24 Howard, 318. 22 English Law & Equity, 559. Statement of the case. be construed not absolutely but reasonably with regard to the circumstances of each particular case. Viewed in that light, inevitable accident may be regarded as an occurrence which the party charged with the collision could not possibly prevent by the exercise of ordinary care, caution, and maritime skill.* Regarding these cases as sufficient to show that a collision resulting from the darkness of the night and without the fault of either party, is properly to be regarded as an inevitable accident, we forbear to pursue the investigation, and wish only to add that we have no doubt the case was correctly decided in the Circuit Court. The decree of the Circuit Court is therefore, AFFIRMED WITH COSTS. GORDON V. UNITED STATES. No appeal lies to this court from the Court of Claims. GORDON, administrator of Fisher, presented a petition in the Court of Claims of the United States, for damages done to him by troops of our Government, in the war of 1812 with Great Britain. The Court of Claims decided against him, and he appealed to this court. The case was argued in favor of the right of appeal by Messrs. Gooderich and Winter Davis; no counsel appearing on the other side. A majority of the court, however,† finding itself constrained to the conclusion that, under the Constitution, no appellate jurisdiction over the Court of Claims could be exercised by this court, and intimating that the reasons which necessitated this view might be announced hereafter-the term being now at its close-the cause was simply DISMISSED FOR WANT OF JURISDICTION. *The Virgil, 1 W. Robinson, 205; The Juliet Erskine, 6 Notes of Cases, 634; The Shannon, 1 W. Robinson, 463; Same Case, 7 Jurist, 380. Statement of the case. THE SUTTER CASE. 1. On the 18th of June, 1841, Juan B. Alvarado, then Governor of Cali fornia, issued to John A. Sutter, for himself and colonists, a grant of land designated as New Helvetia, of the extent of eleven square leagues, as exhibited on the map annexed to the petition for the grant, "without including the lands overflown by the swellings and currents of the rivers," and bounded as follows: on the north, by Los Tres Picos (The Three Summits), and 39° 41′ 45′′ north latitude; on the east, by the borders [or margins] of the Rio de las Plumas (Feather River); on the south by the parallel of 38° 49′ 32 of north latitude; and on the west by the river Sacramento. This grant was adjudged valid and confirmed, and a survey of the eleven leagues was made by a deputy surveyor under instructions of the Surveyor-General of California, locating the land in two parcels,-one of two leagues, and the other of nine leagues,-separated from each other several miles, and the latter parcel embracing land situated on each side of the Feather River; the location, in both of these particulars, conforming to a survey made previously to the petition of Sutter for the grant. Each parcel was located in a compact form, and in conformity to the lines of the public survey. The District Court, under the act of June 14th, 1860, set this survey aside, and, by its direction, a new survey was made, locating the eleven leagues in thirteen tracts of different dimensions and forms, some of which were separated from each other. In directing the location in this manner, the District Court intended that the several selections, which the grantee himself was considered to have made by settlement, or by lease, or sale, or other acts of ownership, should be adopted, and in the order in which they were made, until the whole quantity of the eleven leagues was exhausted. On appeal, this court "fully appreciating the difficulties and embarrassments that surrounded the case," set aside this latter survey, and directed the District Court to confirm the first survey as the more correct location of the grant. 2. By the terms in the grant "lands overflown by the swelling and currents of the rivers," were meant tule or swamp lands. 3. Semble, that in locating land in California, claimed under confirmed Mexican grants, compactness of form and conformity to the lines of the public surveys must be preserved, to the exclusion, if necessary, of selections of the grantee as indicated by his settlement, or by his sale or lease of parcels of the property. 4. Semble, also, that land claimed under a confirmed Mexican grant may be located in two parcels, where, from the character of the country, the entire quantity granted cannot be located in one tract. THIS case, which involved immense interests in California, and questions greatly agitated in a particular portion of that |