Opinion of Clifford, J., dissenting.

eighteenth of October, 1858, entered a decree defining the specific boundaries of the claim.

VII. Appeal was taken to this court by the United States, but this court dismissed the appeal, holding that it was improvidently taken, and remanded the case for further proceedings to be had therein, in conformity to the opinion of this court. Decision in effect was that this court had no jurisdiction of the case, and hence the opinion of the court upon any matter connected with the merits of the controversy can hardly be regarded as authority; but it is not necessary to decide that point, as the court, in express terms, reaffirm what had been decided in the first case. Both decisions of this court in this case, therefore, show that the grant is one by quantity, to be located within the boundaries of the cañada, and I entertain no manner of doubt that such is the true construction of the grant. Such a claim should be surveyed and located under the rules and regulations of the Executive department, whether it be made by the Land Office or by the courts. Location as decided in the opinion of the court in this case will be in violation of every one of those rules and regulations, and will also be diametrically opposed to the opinions of this court in the two cases to which reference has already been made. These propositions, as it seems to me, are not refuted in the opinion just pronounced, even if they are not impliedly admitted; but the suggestion is that the District Court, in the decree of the eighteenth of October, 1858, decided that the grant was one with specific boundaries, and proceeded to fix them in the decree, and that the decree then entered is in full force and unreversed, and that inasmuch as the appeal taken by the United States was dismissed and no new appeal was taken, the decree is binding on this court, although it was contrary to the mandate of this court given in the same cause. Considering the peculiar nature of the jurisdiction in this class of cases, J cannot admit that doctrine. Proceedings in this class of cases are very different from the proceedings in suits at com mon law. Where the grant is of a tract by specific bounda ries, there would be some force in the argument, because in

Opinion of Clifford, J., dissenting.

that class of cases it is incumbent upon the court not only to determine the question of confirmation, but also, if it be decided to confirm the claim, to determine the boundaries of the grant as a part of the original adjudication.

VIII. Such, however, is not the rule, and never was where the claim is what is called a floating claim, or where the grant is one by quantity, to be located within certain outboundaries, embracing a larger tract than the grant. All the courts have to do in such cases is to decide the question of confirmation, and leave the location to the Executive department of the Government. Attention, however, is called to the act of the fourteenth of June, 1860; but the answer to that reference is, that the provisions of that act have nothing to do with the decree of the District Court, entered on the eighteenth of October, 1858, nearly two years before the act was passed. Ópinion of the court undertakes to vindicate the directions given in the cause, not upon the ground that the provisions of that act apply in the case, but upon the ground that the prior decree of the District Court had the effect to determine the controversy, and really that no further survey and location are necessary. Questions of this magnitude cannot be evaded, and ought not to be under any circumstances. Having given the subject all the consideration in my power, I am of the opinion that all that part of the decree of the District Court, rendered on the eighteenth of October, 1858, which attempts and professes to fix the boundaries of the claim in this case, was coram non judice, and utterly void. Reluctant as I am to differ from the majority of the court on this occasion, still I have much satisfaction in reaching that conclusion; because, if twenty millions of property must pass from the United States to those who have no pretence of title to it, I am not willing to cast the blame of such a monstrous result upon the office of the Attorney-General, or to place my decision. in such a cause upon a mere technicality. Patient and thorough investigation has convinced me that the title to the quicksilver mine is in the United States, and it shall never pass into other hands by my vote while that convic

Statement of the case.

tion remains, although I may stand alone. If this great wrong must be done, I would that it could have been done upon some other ground; for it seems that, in the opinion of the court, the case has been pending six years since it was finally and conclusively decided, which is an anomaly, perhaps, never before witnessed in a judicial tribunal. In my view of the case, the decree of the court should be reversed, and the cause remanded, with directions to order a new survey under the rules and regulations of the Executive department of the Government.

LOWBER V. BANGS.

A stipulation in a charter-party that the chartered vessel, then in distant seas, would proceed from one port named (where it was expected that she would be) to another port named (where the charterer meant to load her), "with all possible despatch," is a warranty that she will so proceed; and goes to the root of the contract. It is not a representation simply that she will so proceed, but a condition precedent to a right of recovery. Accordingly, if a vessel go to a port out of the direct course, the charterer may throw up the charter-party.

Ex. gr. A vessel, while on a voyage to Melbourne, was chartered at Boston for a voyage from Calcutta to a port in the United States. The charter party contained a clause that the vessel was to "proceed from Melbourne to Calcutta with all possible despatch." Before the master was advised of this engagement, the vessel had sailed from Melbourne to Manilla, which is out of the direct course between Melbourne and Calcutta, and did not arrive at Calcutta either directly or as soon as the parties had contemplated. The defendants refused to load; and upon suit to recover damages for a breach of the charter-party, it was held that the charterers might rightly claim to be discharged.

BANGS & SON being owners of the ship Mary Bangs, then at sea, on her passage from New York to Melbourne, chartered her at Boston, on the 4th June, 1858, to Lowber, who was there, for a voyage from Calcutta to Philadelphia, &c. The charter-party contained the following clauses :

"Ship to proceed from Melbourne to Calcutta with all possible despatch. It is understood that the Mary Bangs' is now on ber

6

Statement of the case.

passage from New York to Melbourne (sailed 3d day May last); that the owners will use the most direct means to forward instructions to the master, with copy of this charter, ordering it to be fulfilled; but should it so happen that the ship should arrive at Melbourne before these instructions, and the master should have engaged his ship before receiving them, this charter will be void."

No provision, it will be observed, was made for the case of the vessel's having left Melbourne unengaged, or, indeed, for anything but for her arriving at Melbourne, and her engagement before receiving the instructions promised by Bangs & Son, to be sent. The vessel reached Melbourne on the 7th of August; she discharged her cargo, and was ready to sail on the 7th of September. She waited for the mail until the 16th of that month. It was due there on the 5th of September, but by an accident did not arrive until the 14th of October. The voyage from Melbourne to Calcutta, at that time of the year, usually consumed from forty-five to sixty-days. Had the vessel proceeded to Calcutta direct, she ought to have reached there before the middle of November. She went, however, to Manilla, much out of the direct course from Melbourne to Calcutta, and arrived there on the 16th of November. She left Manilla on the 24th of January, and arrived at Calcutta on the 26th of February, more than three months after the time at which she ought to have arrived, if she had gone there directly from Melbourne. The owners addressed to the master five letters, of different dates, advising him of the charter-party, and directed them to Melbourne. The charterers, on the 23d of June, despatched an agent to Calcutta, who arrived there on the 25th of August. As soon as he learned that the vessel had not come direct from Melbourne, he declined loading her under the charter-party. Freights, it may be added, had largely fallen between the date when the charter-party was made, and that of the vessel's arrival at Calcutta; and, also, that after the arrival of the Mary Bangs, and after she was ready and had offered to receive a cargo, the charterers engaged another vessel, of about the same tonnage, to take her place,

Argument for the owners.

and loaded her with a cargo purchased after the arrival of the Mary Bangs, with funds provided for her. The case thus showed that the object of the voyage had not been frustrated.

On error from the Massachusetts Circuit, where the case had come before the court as a case stated, the question presented for the determination of this court was, whether the fact that the ship proceeded from Melbourne to Manilla and thence to Calcutta, instead of going to Calcutta from Melbourne directly, gave the charterers a right to avoid the charter-party; in other words, whether the clause, "ship to proceed from Melbourne to Calcutta with all possible despatch," did or did not make a condition precedent; whether, in short, it constituted a warranty, or merely a representation? The court below considered that it was not a condition precedent, but an independent stipulation, which gave the charterers a claim for damages on failure of performance by the owners, but did not give them the right to avoid the contract; the object of the voyage not having been wholly frustrated. Judgment was given below accordingly.

Mr. Curtis, for the owners.

1. The meaning of the clause is, that the owners would have the vessel at Calcutta "seasonably." She was so there, as is proved by the charterers having got another vessel after the arrival and loaded her. The voyage was not frustrated, nor was even inconvenience felt. The charterers threw up their charter only because freights had greatly fallen, and it was for their interest to do so. The argument which gives to the expression in question its severest meaning is unreasonable. If the master, after receiving his instructions at Melbourne, had stopped unnecessarily for but an hour, had gone to see a friend, had sailed by any but the shortest possible line, had not kept under the utmost press of sail, the charter would be void. The ship would not have proceeded from Melbourne to Calcutta with "all possible despatch." The argument makes the obligation to sail dependent, not on the receipt of the instructions, but on her