author: Mr. Justice CATRON

text:
    The State of Missouri, Complainant, v. The State of Iowa, Respondent. The State of Iowa, Complainant, v. The State of Missouri, Respondent.— Cross-Bill.

    The western and northern boundary-lines.of the State of Missouri, as-described in the first article of the constitution of that State, were as follows: —from a point in the middle of the Kansas River, where the same' empties into the Missouri River, running due north along a meridian line, to the intersection of the parallel of latitude which passes through the rapids of the River Des Moines, making said line correspond with the Indian boundary-line; thence east from the point of intersection last aforesaid, along the said parallel, to the middle of the channel of the main fork of the said River Des Moines; thence, &c., &c.
    The constitution of the State of Missouri was adopted in 1820. But in 1816, an Indian-bounds ry-line had been run by the authority of the United States,' which in its north course did not terminate at its intersection witbi the parallel of latitude which passed through the rapids of the River Des Moines, and, in. its' east course did not coincide with tbtat parallel, or parallel of latitude at all.
    Missouri claimed that this north line should be continued until it intersected' a-parallel of. latitude Which passed through certain rapids in the River Des Moines, and from the point of intersection be run eastwardly along the parallel to these rapids.
    Iowa claimed that this Indian boundary-line was protracted too far to the north; that by the -term “ rapids of the RiverUes Moines ” were meant certain rapids in the Mississippi River, known by that name, and that the parallel- of latitude must pass through these rapids; the effect of which would be to stop ’’,the Indian boun-' dary-line in its progress north, before it arrived at the spot which had'been marked by the United States surveyor.
    There being a bill and a cross-bill, each State is a defendant, and this court can pass such a decree as the case requires.
    The southern boundary-line of Iowa is coincident with, and dependent upon, the ■ northern boundary-line of Missouri.-
    Iowa is bound by the acts of its predecessor, the government of the United States, which had plenary jurisdiction over the subject as long, as Iowa remained a Territory; and the United States recognized the Indian boundary-line, — 1st By treaties made with the Indians; 2d. By the acts of the general, land-office; 3d.. ■By Congressional legislation.
    On the other hand, there are no rapids in the River- Des Moines so conspicuous as to justify the claim of Missouri.
    This court therefore adopts the old Indian boundary-line as the dividing line between the two States, and decrees that if shall be run and marked by commissioners.
    The State of Missouri filed a bill against the State of Iowa, in the Supreme Court of the United States, with the consent of the State of Iowa, in order to Settle a controversy which had-arisen respecting the true location of the houndary-line which, divided the two States.
    The origin of the controversy is So fully stated by Mr Justice Catron, in delivering the opinion of the court, that it is only necessary for the Reporter to explain the pretensions of the respective parties according to the map, without which they canhot be understood.. This map or diagram is only intended to be illustrative of these claims, without pretending to, be geographically accurate.

    In July, 1820, the people living in the then. Territory of Missouri, in pursuance of an act of Congress, adopted a con-, stitution, in which are described the following boundaries: —
    “ Beginning in the middle of the Mississippi River, on the parallel of thbty-six"degrees of. north latitude;, thence west along the said parallel of latitude to the St. Francois River; thence up and following the course of that river, in. the mid-dlé of the main channel thereof, to the parallel of'latitude of thirty-six degrees and thirty minutes; thence west along the same to a point where the said parallel is intersected by a meridian line passing through the middle of the mouth of the. Kansas River, where the same empties into the Missouri River; thence, from the point aforesaid, north along the said meridian line, to the intersection of the parallel of latitude which passes through the rapids of the River Des Moines, making said line correspond with the Indian boundary-line; thence east from the point of intersection last aforesaid, along the said parallel of latitude, to the middle of the channel of the main fork, of the said River Des Moines ; thence down along the middle of the main channel of the said River Des Moines' to the mouth of the same, where it empties into the Mississippi River ; thence, due east to the middle of the main channel of the Mississippi River; thence down and following the course of the Mississippi River, in the middle of the main channel thereof, to the place of beginning.”
    In 1821, Missouri was admitted into the Union with these boundaries.
    By an act of Congress, approved August 4, 1820, the southern boundary of Iowa was made identical with the northern boundary of Missouri.
    In 1816, prior to the passage of these’ laws, commissioners were appointed on the part of the United States to settle with. the Osage chiefs the boundary of the cession lyipch the Osage tribe had just made to the United States, and John C. Sullivan was appointed surveyor to run the .line which should be thus agreed upon.
    Beginning on the bank of the Missouri, opposite the mouth of. the Kansas, at A in the diagram, he ran north just 100 miles to the point C; and thence pursued what he thought was a due east course, (but which was in fact to the north of east,) until he struck the River Des Moines at the point F. This line is marked No. 1, and runs from C to F; the true parallel of latitude being afterwards ascertained to be from C to. Cr.
    The State of Missouri alleged, that, at the point E in the River Des Moines, there existed rapids which answered the call in the constitution, and that, the parallel of latitude spoken of in that .instrument must consequently' be a line running from E to D, and that the north line, which commenced at A, must therefore be protracted to D, where it intersected the parallel of latitude called for; that the phrase, logy used required the ecrapids of the River Des Moines” to be in that river, and not in the Mississippi.

      On the other hand, it was alleged, by the State of Iowa, that in the Mississippi River,'at the place marked H, there were, rapids which were commonly called and known by the name of “the rapids of the River Des -Moines^’,long anterior to the formation of the constitution of Missouri; that the parallel of latitude must run through the head or centre of these rapids, and that the line H B would therefore be the true boundary, the point B being the spot where this parallel of latitude would intersect the line running north from A.

    These were the claims of the respective parties. To sustain them, a great mass of evidence was taken on both sides.
    The cause was argued by Mr. Gamble and Mr. Green, for the State of Missouri, and Mr. Eiving and Mr. Mason, for the State of Iowa.
    The Reporter regrets that ■ he cannot give an extended notice of the arguments of the respective counsel. But he is admonished, by the- size which this volume has already attained, that he must'reduce the cases which aré yet to be-reported to as small a compass as possible.
    The positions assumed by the counsel respectively are thus stated in the briefs of Mr. Green, for Missouri, and Mr. Ewing, for Iowa.

      Mr. Green.

    On the part of the State of Missouri it is insisted, —
    1st. That the words “ rapids of the River Des Moines ” constitute the controlling call to determine the northern boundary, arid that the ^ natural and obvious import of these words is “ rapids of and in the River Des Moines itself.”
    2d. That the evidence establishes the fact, that there are rapids in the River Des Moines.
    • 3d. That there is no ambiguity in reference to the river of which the rapids are spoken, and none as to the rapids, unless more rapids than one are found in the River Des Moines. ■ .
    4th. That having established the fact that there are rapids in the River Des Moines, thus satisfying the call of the constitution, no evidence can be introduced to contradict of vary the meaning of the constitution, or to prove that rapids of some other river were intended, different from that which the language indicates arid describes.
    5th. That the evidence offered does not prove the rapids-nn the Mississippi River to have been ' commonly known and called by the name “rapids of the River Des Moines,” as alleged by Iowa. '
    6th. That if it were true that the rapids of the Mississippi were commonly known and called “rápids of the River Des Moines,” still these rapids could not be taken as the rapids called for, as they do not answer to the description, while those in the Des Moines fulfil exactly the description, and none others will.
    7th. But if the constitution be- considered ambiguous, as between the rapids of the River Des Moines and rapids of the Mississippi, it serves only to let in proof of intention beyond what the language indicates. And on this point the evidence is clear in favor of Missouri.
    Prom a full examination of all the facts and circumstances, as established by . the evidence in connection with the language of the constitution, and by giving to each the weight to which it is entitled, we contend, in behalf of Missouri, —-
    1st. That the old, Indian boundary-line (marked as line No. 1 on the diagram) cannot be the true northern boundary of Missouri, and the terms of the descriptive call do not allow the adoption of that line.
    ' 2d. That the parallel of latitude passing through the old northwest corner of the Indiafl<boundary (marked on the diagram as line No. 2) .is neither legally nor equitably the northern boundary of Missouri.
    3d. That the parallel of latitude passing through the rapids of the Mississippi River (marked on diagram as line No. 3) will not fulfil the descriptive call of the constitution, and cannot be the northern line of the State.
    4th. That the parallel of latitude passing through the rapids of the River Des Moines, at the Big Bend, in latitude 40 degrees 44 minutes 6 seconds north, (marked on the diagram as line No. 4,) will precisely and accurately satisfy the descriptive call of the constitution, and is the true northern boundary of the State of Missouri, as established by her constitution.

      Mr. Ewing, for Iowa.
    We will endeavour to show by the evidence, that, at the time of the adoption of the constitution, there was one object, and one only, namely, the rapids of the Mississippi, a few miles above the mouth of the Des Moines River, which was called in English “ the rapids of the River Des. Moines,” and in French “ les rapides de la Riviére' Des Moines,” which object had notoriety by that name; and that its position is every way adopted to satisfy the locative call.
    We shall also expect to show, by the evidence, that there Were no rapids in the River Des Moines, the.n called, or-entitled to be called, on account of position or magnitude, “ the rapids of the River-Des Moines.”
    These facts being established, we will, insist that the. notorious object bearing the name used in the locative call, and every way; satisfying the call, must be taken in law to be the object called for; and that the centre of “ the rapids of the River Des Moines ” in the Mississippi is the point, over which the line of latitude marking the boundary of the State of Missouri must rim.
    1st. We will show by public acts, and by numerous witnesses, the position of “ the rapids of. the River Des Moines ” ; that they are the' same with the lower or Des Moines rápids of the Mississippi, and that those rapids were in 1820, and prior thereto, well known by. the name of ■ “ the rapids of the River Des Moines ” in English, and “ les rapides de la Riviére Des Moines” in French;
    2d. We will infer from the language of the constitution itself, and the' then existing knowledge of the country, that “the rapids of the River Des' Moines” were called for in the. constitution merely to fix the parallel'of latitude on which the boundary-line was to run, and. were not supposed to be touched by that line.
    3d. We will show bv actual survey, .as well as by general evidence, that there are no rapids in thé Des Moines entitled to the, general descriptive appellation of “ the rapids of the River Des Moines.”
    4th. And we will insist that in 1820 there were no rapids-in the Des Moines River known as “ the. rapids of the River Des Moines.”
    5th. We will contend, that the State of Missouri has failed to prove a general understanding or. opinion in Congress and in the convention counter to what we have shown to be the obvious construction of the act of Congress and of the constitution of Missouri, when taken in. connection with the well-established facts.
    6th. W:e will contend, that the evidence on the part of Missouri shows that all, or nearly all, of the members of the convention,, and other witnesses Who supposed, or now think they supposed, the rapids named in the constitution were.in the Des Moines River, knew nothing of any particular rapids to which the constitution referred ; but that their impression was vague and general, fixing on no actual known or existing object.'
    7th. We will show-that the evidence which tends to, give to rapids in the Des Moines River a distinct locality and name is insufficient; and unsatisfactory, and that in the aggregate it applies as well to the Sweet Home or the Farmington rapids, as to the rapids of the Big Bénd.
    Sth. We will insist that the rapids at St. Francisville and the rapids at Farmington are each and either of them better entitled to the appellation of “ the rapids of the River Des Moines,” than the rapids at the Great Bend,' — the first because of its position, the second because it is the greater rapid. And that, the rapids at Sweet Home confofm better than those ■at the Great Bend to the locative calls in the constitution, and to contemporaneous opinion and usage. Fall at Great Bend, in 87 rods, 1.80 feet. Fall at Farmington, in 87 rods, 2.05 feet.
    9th. if we succeed in maintaining these propositions, we establish as matters of fact, that the lower rapids of the Mississippi were the object, and the only object, which, in 1820, bore in English, the name used in the constitution, “ the rapids of the'. River Des Moines,” and in French the name used in the translation, Mles rapides de la Riviére Des Moines.” And that, at that time, .they had notoriety in both languages by those names, and that they every way satisfy the locative call.
    10th. And these facts being established, we will contend that those- rapids are-, and iqust be held in law to be, the object called for ; and that the centre of that object', namely, the centre of “ the' rapids. of the River Des Moinés ” in the Mississippi, is' the point over which' the line of latitude must be drawn which shall mark the northern boundary of the State of Missouri.
   Mr. Justice CATRON

delivered the opinion of the court.

On the 10th day of December, A. D. 1847, the State of Missouri, filed her original. bill in this court, according to the third article and second section of the Constitution, against the State of Iowa, alleging that the northern part of said State of Missouri was obtruded on and claimed by the defendant, ■for a space of more than ten miles -wide. and about two hundred miles long; and that the State of Missouri is wrongfully ousted of her jurisdiction over said territory, and obstructed from governing therein; that the State of Iówa has actual possession of’the same, claims it to be within her limits, and exercises jurisdiction over it, contrary to the rights of the State of Missouri, and in defiance of her aixthority.

. And the complainant prays, that, on a final hearing, the northern boundary-line .of said State of Missouri (being the common boundary between the complainant and defendant) be, by the order of this court, ascertained and established ; and that the rights of possession, jurisdiction, and sovereignty to all the territory in controversy be restored to the State of Missouri ; that she be quieted in her title thereto; and that the. defendant, the State of Iowa, be for ever enjoined and restrained from disturbing the State of Missouri,, her officers and people, in the full possession and enjoyment of said territory, thus wrongfully held by the State of Iowa.

To this bill the State of Iowa answers. She denies the right claimed by Missouri; alleges that Iowa has the sovereign authority, to govern and hold the territory in. dispute as part of her territory, the common line dividing the States bfeihg the southern part thereof; and also prays, that the rights of the parties may be speedily adjudicated by this court, that the relief prayed by complainant may be denied, and that he' bill be dismissed.

To the bill of Missouri Iowa - files her cross-bill, charging,; Missouri with seeking to encroach on the. territorial limits, of Iowa to the extent aforesaid, and more ;. prays, that, on a final hearing, a decree be made by this court, settling for ever the trufe and rightful dividing line between the two States; that Iowa may be quieted in her possession, jurisdiction, and sovereignty up to the line she claims; and that the State of Missouri-be perpetually enjoined from exercising jurisdiction and authority, and from disturbing the State of Iowa, her officers and people, in the enjoyment of their- rights on the north side of the true line!

To this bill , the State of Missouri answers, and sets up in defence the same matters set forth by her original bill.

Replications were filed to both answers. On these .issues depositions were taken, on which, together with much of historical and documentary evidence, the 'cause was brought on to a hearing, and was heard with a most comméhdable spirit of liberality on both sides. And we take occasion here to say, on a matter of practice, that bill and cross-bill is deemed - the most appropriate mode of proceeding applicable to cases like the present, -as it always offers an opportunity to the court of making an affirmative decree for the one side or the other, and of establishing by its authority the disputed line, and of having it permanently marked by commissioners of its own appoint-, ment, if that be necessary, as in this cause it is.

The present controversy originated in 1837, between the-United States and the State óf Missouri, and was'carried on for ten years before Iowa was admitted as a State. Previous to the controversy, and after Missouri came into the Union, in 1821, many acts had been done by both parties most materially affecting the controversy, and tending to coihpromit the claims now set up, on the one side as well as the other. The new State of Iowa came into the Union, December 27, 1847, and up to this date she was bound by the acts of her predecessor, the United States, forasmuch as the latter might have directly conceded to Missouri a new boundary on the north, as was done on the west; and so, likewise, Iowa is bound by the acts and admissions of the United States, tending indirectly to •confirm and establish a particular line as the northern boundary of Missouri. And to ascertain how far the United States government was committed by acts to a particular line, a brief historical notice is necessary, showing how jurisdiction has been exercised in the country west of the Mississippi River. It was acquired in 1803, and in 1804 the Territory of Orleans and the District of Louisiana were divided, the latter then embracing what is now the State of Missouri, and much more. In 1805, the District of Louisiana was erected into a separate territorial government, the name of which was changed to Missouri, on the State of Louisiana being created, in 1812, that State having adopted the name of Louisiana. Ip 1819, the Territory of Arkansas was formed from the southern part of the Missouri Territory; the lines of division being the same that now divide the States of Missouri and Arkansas.

In 1818, the inhabitants of Missouri Territory petitioned Congress that it might be admitted into the Union as an independent State. They set forth the boundaries which they desired that the new State should have, with the reasons favorable to the boundaries desired. They alleged that the petitioners resided in that part of the territory .which lies between thirty-six degrees and thirty minutes’ and forty degrees north;, and between the Mississippi River east, and the Osage boundary-line west; and they prayed to be admitted into the Union of the States within these limits. The petitioners further declared, that “the boundaries which they solicit for the future State they believe to be' the most reasonable and proper that can be devised. The southern limit will be an extension of the line that divides Virginia and North Carolina, Tennessee and Kentucky.' The northern will correspond nearly with the north limit of the- territory of Illinois, and with the Indian boundary-line, near the mouth of the River Des Moines. A front of three- and a half degrees upon the Mississippi will be left to the South, to form the Territory of Arkansas, < with the River Arkansas traversing its centre. A front of three and a half degrees more, upon a medium depth of two hundred miles, with the Missouri River in the pentre, will, form the State of Missouri. Another front of equal extent, embracing the great River St. Pierre, will remain above, to form another State At some future day. The boundaries, as solicited, will include all the country to the north and west to which the Indian title has been extinguished. They will include the body of the population.”

The two Indian boundary-lines referred to (as. “ the Osage or Indian boundary”) were run in pursuance of a treaty made in. 1808,. bet ween the United States and the Great and Little Osage nations, by which it was stipulated that the Osage boundary should begin at Fort Clark, standing on the south bank of Missouri River, about twenty-three miles below the. mouth of the Kansas, thence running due south to the Arkansas River, and with it to its mouth; thereby ceding to the United States all lands lying east of said line, and north of the southwardly bank of the Arkansas. The treaty also ceded “all lands belonging to the Osages situated northwardly of the River. Missouri.” The boundary-lines were to be run and marked as soon as the circumstances and convenience of the parties would permit. And the Great and Little. Oságes promised to depute two chiefs from their respective nations to ac-; company the commissioner or' commissioners who might be appointed by the United States to settle and adjust the said boundary. The . war of 1812 seems to have hindered a survey of the. lines, as, in 1815, by another treaty, peace was reestablished between the contracting parties, and former treaties were renewed, and in 1816 John C. Sullivan was sent by the-United States to run the-lines north of the Missouri. River. The Osages, by the treaty of 1808, having surrendered all claim to territory north of the Missouri River, it became necessary that -they should show to the United States what part of that country they owned, so that it might be separated, by a defined boundary, from other- Indian territories. Sullivan, the surveyor, commenced his first line on the north bank of the Missouri, opposite to the middle of the mouth of ithe Kansas, and ran north one hundred miles, made a corner, and then ran east to. the River • Des Moines, about one hundred and fifty miles more, west of the first line, and north of the second.. The entire country was then claimed, and partly occupied, by different nations of Indians. In 1816, also, Joseph 0. Brown ran. the line from Fort Clark south, to the Arkansas River, in execution of the. treaty of 1808. And the lines run by Browh and Sullivan are “the Indian boundary” referred to in the foregoing petition of the inhabitants of Missouri Territory.

In March, 1818, the petition was referred to a select committee ; and on March. 6th, 1820, an act of Congress was passed, pursuant to the petition, authorizing the people of Missouri Ter-, ritory to form a constitution and. State.government within the limits designated by the act; that is to say, — “ Beginning in the--middle of the Mississippi River, on the parallel of thirty-six degrees of north latitude ; thence west along the said parallel of latitude to the St. Francis River; thence up and following the course of that river, in the middle of the main channel ■ thereof, to the parallel of latitude of thirty-six degrees and' thirty minutes; thence west along the same to a point where the said .parallel is intersected by a meridian line passing through the middle of the mouth of the Kansas River, where the same empties into the Missouri River; thence, from the point aforesaid, xibrth along' the said meridian line, to the intersection of the parallel of latitude which passes through the rapids of the River .Des Moines, making said line correspond with the Indian bdundary-line; thence east from the point of intersection last aforesaid, along the said parallel of latitude,' to the middle of the channel of the main fork of the said River Des Moines; thence down along the middle of the main channel of the said River Des Moines to the mouth of the same, where it empties into the Mississippi River; thence due east to the middle of the main channel of the Mississippi River; thence down and following the course of the Mississippi River, in the middle of the main channel thereof, to the place of beginning.”

According to this law, the people of the Territory, in 1820, proceeded to form a constitution, by which the boundary prescribed by the act* of Congress was adopted; and by resolution of March 2, 1831,'the State was admitted to enter the Union on certain conditions, to which she assented in June, 1821. On the north and west, as already stated, the new State bordered on Indian territory, over which the general government exercised that modified jurisdiction which existing Indian rights would allow,-and had the exclusive power to extinguish the Indian title. The boundaries were therefore common :to the two governments, and the acts of either, when exercising jurisdiction with respect .to the common boundary, become proper subjects of consideration in the present controversy, as either government might bind itself to a practical line, although not a precisely true one, within the foregoing description. And in pursuing this branch of the subject, our first inquiry will be, how far the general government has committed itself to the old Indian boundary. Its action has .been, first,, through the Indian department; secondly, through1 the surveyor’s department ; and thirdly, by the exercise of civil jurisdiction in the territorial form of government on the north of Sullivan’s libe, embracing the territory now in controversy.

And;- first, as to Indian treaties. The earliest one materially bearing on the question was that of August. 4, 1824, with the Sac and Fox tribes. They ceded to the United States all the title and claim that they had to any lands within the limits of the State of-Missouri, “which are situated, lying, and being between the Mississippi and'Missouri Rivers, and a line running from the Missouri, at the entrance of the Kansas River, north one hundred miles to the northwest corner of the State of Missouri, and from thence east to the Mississippi; reserving to. the half-breeds of said tribes the small tract in the fork between the Mississippi and Des Moines Rivers, and south of thé said line.” The Indian tribes admitted that the land east and south of the given lines belonged to the United States, and that none of their people should be permitted to settle or hunt on it. Although the Usages had, in part, ceded the same country in 1808, still the Sacs'and Foxes set up a claim to part of it, and the treaty of 1824 was made to quiet their claim;

June 3, 1825, the . Kansas tribe also ceded to the'United States all claim they had to any lands in the State of Missouri, and further ceded and relinquished all other lands which they then occupied, or to which they had title, or claim, “lying west of the said State of Missouri, and within the following boundaries: beginning at the entrance of the Kansas into ■the Missouri River; from thence north to the northwest corner of the State of Missouri,” thence north and west. .Of course, the northwest corner here referred to was the one made by Sullivan in 1816, as none other was then claimed by Missouri herself, nor kno wn to the United States or the .Indians.

In February, 1831, the State of Missouri, by a memorial from the legislature to Congress, petitioned the United States for an addition of the country west of the line running from the mouth of the Kansas north, and between said line and the Missouri River, alleging that it was a small slip .of land that had been acquired, by the treaty of June 3d, 1825, from the Kansas Indians. The petition declared, that the line from the mouth of the Kansas north was about one hundred miles long; that the country was settled, and rapidly settling, to its utmost verge; and that, as the Missouri River was the only great highway of this region, and could not be reached through a country inhabited by Indians, and being without roads, a cession of it to that State was necessary and proper!

June 7, 1836, Congress acceded to the request of Missouri, and granted to-that State all' jurisdiction over the lands lying between iis then western line and the Missouri River, making the river the western boundary. But the accession was not to take effect until-the Indian title.to the country was extinguished.

By the treaty of July 15, 1830, ten confederated tribes conjointly ceded a large tract of country to the United States, the boundary of which began near the head of the Des Moines River, and passéd westwardly to the north of the principal rivers falling into the Missouri; and down Calumet River to the'Missouri, and down the same to the Missouri State line at the piouth of the Kansas; thence along said State line to the northwest corner of the State ; and then northwardly and eastwardly various courses to the place of beginning. And within this boundary the tribes were to be located and superintended by the United States, pursuant to a policy now generally prevailing, and by which the Indians east' of the Mississippi River have been removed west of it. By this treaty, the neck of land between the Missouri River, and the then western line of Missouri was appropriated for the benefit of these tribes. To remove this impediment, and gratify the request of the State to have her limits enlarged, a treaty was made on the 17th of September, 1836, with the Iowas,, Sacs, and Foxes, reciting the facts, so far as the Indians were interested, and also that it was desirable and necessary that the country should be attached to the State of Missouri; and thereupon these Indian tribes (being part of the ten) did cede and relinquish to the United States all their right and interest to the lands lying between the State of Missouri and the Missouri River; and the- United States were exonerated from the guaranty imposed on them by the treaty of 1830, known as the Treaty of Prairie du Chien. And on the 27th of September, 1836, another band of the Sac and Fox tribes made, a similar cession. And on the 16th of October, 1836, various, bands of the Sioux, by another treaty, also assented to the cession, but in more definite terms: they gave a‘quitclaim to the United States of their interest in. the lands “lying between the State of Missouri and the Missouri River, and south of a line running due west from the northwest corner of the State to the Missouri River.” The country having been disencumbered of the Indian title, the President, by. proclamation of March 28, 1837, declared that the act of Congress of June 7, 1836, should take effect and thereby the ceded territory became a part of the State of Missouri.

There are, in all, fifteen Indian treaties referring to the Osage boundary of 1816, as run by Sullivan, each of which recognizes that boundary as the Missouri State line ; and all of which treaties were made after Missouri was admitted into the Union, and before Iowa became a State. And as the treaties were drawn by authority of the United States, they must be taken as recognitions, on the part of the general government, that the Missouri boundary and the old Indian boundary are,,identical.

In the second place, it is proper to ■ inquire how far the general government has recognized the Indian boundary-line of 1816- in its land department. By the act of February 17, 1818, the Howard District was established. This extended west to the old Indian boundary, and ran with it from the mouth of the Kansas. north, through its whole lengthy and thence east with Sullivan’s line to where it intersected the range line ten west from the principal meridian; extending on the east line about four fifths of its length.

In 1823 this district was divided, and a western one established fronting on the two lines.

To the eastern part of Sullivan’s line, next to the Des Moines Riv.er, the St. Louis District extended until 1824: when the Salt River District was established, running west to the range line between ranges 13 and 14; thence north to the-northern boundary-line of the State of Missouri; thence east with the State line. to the. River Des Moines, and down the same with the State line.

By the act of August .29,1842, the western land district was divided, and that part of it lying north of the Missouri River ,had attached to it the Platte country; that is to say, the country annexed to Missouri by the act of Congress o 1836, lying west of the old.Indian boundary, and next to the Missouri River.

When acting through the surveyor’s department of public, lands, on the Missouri side, the general government has never, recognized on the north, nor, until the Platte country was attached, on the west, any boundary as belonging to that State other'than the two Indian lines run by Sullivan in 1816, so far as they extended.

The country north of the State of Missouri was for a time - attached to the Territory of Michigan, and then to the Territory of Wisconsin. By the act of June 12, 1838 (ch. 96), it was formed into a separate territorial government, by the name of Iowa. And by another act qf the same date (ch. 100), the territory was formed into two land districts; the southern one embracing the country in dispute.

And on the Iowa side, the public surveys were executed, and lands were sold, up to Sullivan’s northern line. 'Nor had the Surveyor-General of Illinois and Missouri any jurisdiction to go beyond it north; nor the surveyor’s department of Iowa, to cross it by surveys to the south. From the time that Missouri became a State.to this day, Sullivan’s line has been recognized by the United States as the true northern boundary of Missouri, so far as it could be done through the department of public lands.

And thirdly, Congress, as early as 1834, organized a territorial government bounded by said line; laid off counties bounded by it on the south, as early as 1836; and governed the territory for ten years up to that line, — all the time recognizing it as the proper northern boundary of Missouri.

From these facts it is too manifest for argument to make it more so, that the United States were committed to this line when Iowa came into the Union. And» as already stated, Iowa must abide by the condition of her predecessor, and cannot now be heard, to disavow the old Indian line as her true southern boundary.

The State of Iowa, by her cross-Bill, alleges that Missouri also treated the old Indian bop^d&ry as her true northern line, until about the year 1836; and that said line, at its western, extremity, is about six miles north of the parallel of latitude which is the proper dividing line between the two States, and that, at its eastern extremity,' it is about ten miles north of the same; that the parallel of latitude on which the line should run is found at a point opposite the middle, of the rapids in the Mississippi River, known as the Des Moines Rapids.” This rapid begins about three miles above the mouth of the Des Moines River, and extends up the Mississippi about fourteen miles. It is a highly notorious geographical object, and a very proper one to govern a national boundary; but the name called for in the act of Congress of 1820, and in the constitution of Missouri, is “the rapids of the River Des Moines.” Then, and ever since, the great rapid in the Mississippi River has befen known by a different name. It is therefore left uncertain whether the rapid in the Mississippi was the one referred to; and the obscurity is greatly increased by a most embarrassing disagreement among the witnesses testifying on this head.

The name given in the act of Congress, taken in connection with its context, would assuredly apply to a rapid in the Des Moines River, if a notorious one existed, as the Mississippi River is not mentioned in the call, and the Des Móines is; nor was the Mississippi River to be reached by that line. Then, again, the rapid is fourteen miles long, and no part of it is called for as an opposite point to found the line upon.

It therefore, follows, that the claim of Iowa, to come south to the middle of the rapid throws us on a doubtful and forced construction of the instrument under consideration; and such a construction we are not willing to adopt, even if Iowa .could at this day set up a claim 'to its adoption, which, for the reasons above stated, we think she cannot be allowed to do.

The State of Missouri, by her bill, disavows the old Indian boundary, and utterly denies that the great Des Moines rapid in the River Mississippi is. the object called for in her constitution. She insists that the true rapids are found in the. Des Moines, and that her northern line has been run and marked from the trae rapids, west to the Missouri River. The history of this line is as follows: — In December, 1836, the legislature of Missouri passed an act requiring the northern boundary of that State to be surveyed and marked under the direction of the executive.; and in June, 1837, the governor appointed three commissioners to execute the law, who acted under special instructions from the "executive. The commissioners appointed Joseph 0. Brown their engineer and surveyor, and commenced the work in July following; and after having examined the Des Moines, from a point nearly one hundred miles up the river, downwards to its mouth,- to ascertain the true rapids called f6i in the State constitution,' determined on the proper place where,, in their judgment, the line should begin; and from that place the line was run and marked due west to the Missouri' River; and this is known as Brown’s. line. It.lies about ten miles-north of the old Indian boundary. • And, by ah act of the legislature of Missouri, passed 11th February, 1839, the line so run and marked by Brown was declared to be the northern boim- ' dary-line of said State, and has been claimed by her as such ■ since that time.

On the rapids selected by .the commissioned, and on Brown’s line, the bill of complaint of the State of Missouri is altogether founded; and if she fails in establishing the proper place of beginning, she has no case, and must go out of court 1 as a complainant, and can have no relief further than an injunction to restrain Iowa from obtruding on her jurisdiction south of the true line, wherever it may be found, should Iowa attempt to go south of such line.

The main question arising on the original bill of the State of Missouri therefore is, whet aer -any rapid exists in the Des Moines River of such a prominent character as to correspond to the call in her constitution of “ the rapids op the River Des Moines.” On this branch of our inquiries we are furnished with highly satisfactory evidence. By the act of August 8, 1846, the Iowa. Territory had granted to it, by Congress, every _ alternate section of land, not then disposed of, lying in- a strip of five miles wide on each-side of the Des Moines River, for the improvement of the same from its mouth to a long distance up, and which grant was to accrue to tne benefit of the State when she should come into the Union. To carry into effect the act of Congress, a board of public works was organized for the improvement of the river. They employed an engineer to survey and level it with a’view to slack-water improvements, and it was surveyed from its mouth for ninety-three miles up-, wards.- The engineer had every advantage of suitable instruments, low water, and ice in the winter, and no doubt, exists of ¡bis accuracy when performing the field operations and in making the levels.

. The first ripple he carné to, worthy of notice here, was twenty-four miles from the mouth of the river; and, on eighty rods of its greaftest descent, he found .73 foot fall.

On the 26th mile is “Sweet-home Ripple.” There was found a fall of .86 foot in eighty rods.

On the 34th mile, at Farmington, he found a fall of 2.27 feet in ninety-six rods, and in eighty rods 1.89 feet.

On the 42d mile, he found a ripple (near Benton’s Port) of 1.26 feet fall in sixty rods, and 1.68 in eighty rods.

. On the 61st mile, being at the great bend, where Brown’s line commences, the engineer found a fall of 1.76- feet in eighty rods, — that is to say, twenty-one inches. Brown had also taken a level there of a space of some sixty rods, in August, 1837, and found a fall in that distance of 1 foot 9§ inches; but his instruments were not so reliable. The bottom of the river is rock at that place, and there is a thin stratum at. one point, over which the water breaks when the river is low.

On the 63d mile, a fall was found in eighty rods of 1.75 feet by the engineer of Iowa.

On the 56th mile, a fall of 1.81 feet was found in eighty rods.

On the 93d mile, a fall was found in eighty rods of 2.10 feet.

A line extended due west from this greatest fall would lie about twenty miles north of Brown’s line, the river being very crooked. From this point downwards, it was examined by the commissioners of Missouri in 1837.

The shoals on the 34th mile, at Farmington, on the 42d, at Benton’s Port, and at the great bend at Yan Burén, on the 61st mile, where Brown’s line begins, and the descents on the 53d and 55th miles, are of about equal magnitude; neither reach to so much as two feet ascent in eighty rods, and are not perceptible at all when the,*water is three feet higher than when at its lowest stage in dry weather. In 1820 these shoals were nameless, and are so slight that some of them are now nearly obliterated by the accidents of dams thrown across the river for milling purposes. Either one of the five might have been selected by the commissioners of Missouri for the proper place of beginning with almost equal propriety. They searched the river from the Appannoose Fall, at the 93d mile, to its mouth, in a pirogue, before they selected their starting-point, obviously depending on such examination for a selection of the particular place of beginning, and not on any notorious rapid pointed out by public reputation. There is none such in the Des Moines River, and therefore Brown’s line cannot be upheld, nor the claim of Missouri be supported.

This court is, then, driven to that call in the constitution of Missouri which declares that her Western boundary shall correspond with the Indian boundary-line; and, treating the western line of a hundred miles long as a unit, and then running east from its northern terminus, it will supply the' deficiency of a call for an object that never existed. Nor has Missouri any right to complain. She herself, for ten years and more after coming into the Union, recognized the Indian lines west and north as her proper boundary; her counties were ^tended up to these, lines before,1 the present controversy arose•. and so counties in the territory north were established up to this recognized line without objection on the part 6f Missouri. And when Congress ceded to Missouri the country west of Sullivan’s line, both parties to that cession acted on the assumption, that the cfeded territory next the Missouri River whs bounded on the north -by a line that should be run due west &om the northwest corner of the old Osage boundary. To this extent the Indian title was extinguished, and to no other extent did the United States cede that country. -Nor could this court act otherwise than to reject,, the claim of Missouri, without doing palpable injustice to the United States on the western part of the line:

We are, therefore, of opinion, that tlie northern boundary of Missouri is. the Osage line, as"run by- Sullivan in 1816, from .the northwest corner made by him, W the Des Moines River; and that a line extended due west from said northwest comer to' the Missouri River is the prpppr. northern boundary on that end of the line. • And this is the unanimous opinion of all the judges of this court.

Decree.

On this 13th day of February, A. D. 1849, the cause of the State of-Missouri against the Staté of Iowa, on án original bill, and also on a cross-bill of the State of Iowa against the State of Missouri, constituting part of said cause, -came on to be heard before the honorable the judges of the Supreme Court, of :the United States in open court, all of the judges of said court being present. And said cause was heard on the original bill, mid the answer thereto, and the replication to said answer; and also on said cross-bill, and the answer thereto, and the replication to said answer; and on the proofs in said caüáe, consisting of depositions; documents, and historical, evidences; when it appeared to the court, that, in tne year i£ 16, the United States caused to be run and marked two lines, as part of a boundary between the United States and the Great and Little Osage nations of Indians, in execution of a treaty made with said Qsages in 1808, the first line of the tw& beginning on the eastern bank of the Missouri River, opposite the middle of the mouth of the Kansas River, and extending north one hundred miles, where a corner was made by John C. Sullivan, the surveyor and commissioner, acting on behalf of the United States and the Osage'nations; and that from, said corner a second line was then run and marked by said surveyor, under said authority, which was intended to ,be run due east, oh a parallel" of latitude, but which line, by mistake, varied about . two and one-half degrees towards the north of adpe east and west line. And. it.further appeared, that the first-named line is the one to which the descriptive call in the constitution of the State of Missouri refers as the, Indian boundary-line, and to which the western boundary of said State was to correspond." And it also appeared, that said two lines had, at all times since Missouri came into the Union as a Státe, been recognized by the United States as the true western and northern boundaries of the State of Missouri, as called for - in her constitution; and that the State of Missouri had also recognized these lines as a part of her b( undary for the first ten years of her existence, if not more;.but that, in .the year 1837, she caused another line to be run, and marked as her northern boundary, from the River Des Moines due west to the Missouri River, lying about ten miles north of said line run by Sullivan in 1816, which line of 1837" embraced part of a territory then governed by the United States, and which.was inhabited by citizens of the United States, and which territory continued to be so governed by the United States until the 29th day of December, 1846, when the jurisdiction over the same was conferred upon the State of Iowa. It further appeared, that the State, of Missouri claims to exercise jurisdiction up to said line, as fun and marked in the year 1837, on an assumption that the descriptive call in her constitution for a parallel of latitude “ passing through the rapids of the River Des Moines ” was gratified by a rapid found in said river, at a place known as the Great Bend, and from which said line was begun qnd extended west. And this court finds that there is no such rapid in the River Des Moines as that called, for in the constitution of the State of Missouri; and that she was not justified in causing the line run and marked in 1837 to be extended as her northern boundary.

And the court further finds, that the State of Iowa is estopped from setting up claim to a line south of the old Indian boundary, known as Sullivan’s line, as said State," by her cross-bill, assumes to do; because her predecéssor, the United States, by many acts, and by uniform assumptions, up to the time when Iowa was created, in December, 1846, recognized and adopted Sullivan’s line as the proper northern boundary of the State of Missouri;, and that the .State of Iowa is bound by such recognition and adoption.

And it further appeared, that that portion of territory lying west of Sullivan’s first line, and between the same and the Missouri River, was added to the State of Missouri by force of aft act. of Congress of June 7th, 1836, which took effect by the President’s proclamation of March 28th, 1837; and that a line prolonged due west from. Sullivan’s northwest corner, on a parallel of latitude, to the middle of the Missouri River, is the true northern boundary of the State' of Missouri, on this part of the controverted boundary.

And this court doth therefore see proper to decree, and doth accordingly order, adjudge, and decree, that the true and proper northern boundary-line of the State of Missouri, and the true southern boundary of the State of Iowa, is the line run and marked in. 1816, by John C- Sullivan, as the Indian boundary, from the northwest corner made by said Sullivan, extending eastwardly, as he run and marked the said line, to the middle of the Des Moines River; and that a line due west from said northwest corner to the middle .of the Missouri River is the proper dividing-line between said States west of the aforesaid corner; and that the States of Missouri and Iowa are bound to conform their'jurisdictions up to said line on their respective sides thereof, from the River Des Moines to the River Missouri.

And it is further adjudged and decreed, that the State of Missouri be, and she is hereby, perpetually enjoined and restrained from exercising jurisdiction north of the boundary aforesaid dividing the States; and that the State of Iowa be, and she hereby is, also perpetually enjoined and restrained from . exercising jurisdiction south of the dividing boundary' established by this decree.

Ánd’it is further ordered^that Joseph C. Brown, of the State of Missouri, and Henry B. Hendershot, of the State of Iowa, be, and they are hereby, appointed commissioners to find and re-mark the line run by said Sullivan in 1816, extending east-wardly from said northwest corner to the Des Moines River; and especially to find and establish said northwest corner, and to mark the same as hereinafter directed; and also to run aline due west, on a parallel of latitude, from said comer, when found, to the Missouri River, and to mark the same as hereinafter directed.

And said commissioners are hereby commanded to plant at said northwest corner a cast-iron pillar, four feet six inches long, and squaring twelve inches at its case, and eight inches at its top; such pülar to be marked with the word “ Missouri” on its south side, and “ Iowa ” on the north, and “ State Line ” on the east side ; which marks shall be strongly cast into- the iron. And a similar pillar shall be by them planted in the line near the bank of the Des Moines River, with the mark of “ State Line” facing the west. And also a similar one, near the east bank of the Missouri River, shall be planted b,y thé said commissioners in the said line, the mark of “State Line ” facing the east.

And it is further ordered, that pillars or posts, of stone or of cast-iron, shall he planted at every ten miles in the line extending east, from the northwest corner aforesaid to the Des Moines River; and also at the end of every ten miles on the dué west line, extending to the Missouri River from said corner. . These latter line-posts ,to be of such description as the commissioners may adopt, or as the parties to this suit, acting jointly, may direct the commissioners to use,.except that said line-posts shall be of stone or iron.

• And it is . further ordered, that a duly certified copy of this, decree shall be forwarded to the chief magistrate,of the State of Missouri, forthwith,’by the .clerk of this court; and. that a similar copy shall, in like manner, be forwarded to the chief magistrate^ of the State of IowaV. And the" commissioners of this court hereby appointed are directed to correspond with said chief magistrates respectively, through their secretaries of state, requesting the cooperation, and assistance of the State authorities in the performance of the duties imposed on said commissioners by this decree.

And it is further ordered, that the clerk of this court forward to, each of the said commissioners a copy hereof, duly authenticated, without delay.

. And it is further ordered, that said commissioners inaké report to this court, on or before the first day of January next, of their proceedings .in the premises, with a bill of costs and charges annexed.

And it is further ordered, that, should either of said commissioners die, or tefuse to act, or be' unable to perform the duties required by this decree," the chief justice .of this court is hereby authorized and empowered to appoint other commissioners to supply vacancies; and, if it be deemed advisable by the chief justice, he may increase .the. commissioners, by appointment, to more than two ; and he is authorized to .act'on such information in the premises as may be satisfactory to himself.

And should any other contingencies arise in -executing this decree, the chief justice, in vacation, is further and-generally authorized to make' siifch orders and give such instructions as this court could do when in session. Copies of all orders and instructions and acts done in the premises by the chief justice shall be filed by the clerk of this court,, together with the petitions, papers, and documents on which they are founded. And reports of the commissioners, if made in vacation, shall be filed with the clerk also, for safe-keeping thereof, until presented in open court for its action thereon.

And it is further ordered and adjudged, that the costs of this suit, including the original bill,, cross-bill, and the proceedings thereon, and alt costs incident to establishing and marking the dividing line, and all other costs and charges of every description, shall be paid by the States of Iowa and Missouri equally*

In the case of Missouri v. Iowa, and of Iowa v. Missouri, in the Supreme Court of the United States:

Having received information of the death of Joseph C. Brown, one of the commissioners appointed by the decree of the Supreme Court in the above-mentioned cases to run and mark the boundary-line between the States of Missouri and Iowa, I hereby, pursuant to the duty enjoined upon me by the said decree, appoint Robert W. Wells, of the State of Missouri,'a commissioner for the purposes aforesaid, in the place of the said Joseph C. Brown, deceased.

R. B. TANEY, Chief Justice of Supreme Court of U. S.

Baltimore, April 6,1849.


source: Caselaw Access Project

author: Mr. Justice DANIEL

license: Public Domain

text:
    Thomas Ap Catesby Jones, Plaintiff in error, v. The Unite States.
    Where a running account is kept at the Post-Office Department between the United ■ States and a postmaster, in which all postages are charged to him, and credit is given for all payments made, this amounts to an election by.the creditor to apply the'payments, as they are successively made, to the extinguishment of preceding balances.
    This the creditor has a right to do in the absence of instructions from the debtor.
    The English decisions and those of this court examined.
    The act of Congress of 1825 (4 Stat. at Large, 102), which exonerates the sureties if balances are not sued for within two years after they occur, does not apply to this case, because, by this mode of keeping the account, the balance due from the postmaster is thrown upon the last quarter.
    This case was brought up by writ of error from the Circuit Court of the United States for the Eastern District of Virginia.
    It was a suit brought by the United States upon , a postmaster’s bond against Walter F. Jones (the postmaster at Norfolk) in Virginia), and Thomas Ap Catesby Jones and Duncan Robertson, his sureties. Judgment went by default against the ppstmaster and Robertson.
    The act of Congress upon which the defence rested was the following, viz.: —
    The act of the 3d Match, 1825,' (4 Statutes at'Large, 102,) is entitled “An act to reduce into one the several acts for establishing and regulating the Post-Office Department,” and in its third section enacts, —
    “ That it shall be the duty of the Postmaster-General, upon the appointment of any postmaster, to require and take of such postmaster bond, with good and approved security, in such penalty as he may judge sufficient, conditioned for the faithful discharge of all the duties of such" postmaster required by law, or which may be required by any instruction or general rule for the government of the Department: Provided, however, Thát if default shall be made’ by the postmaster aforesaid, at any time,- and the Postmaster-Generql shall fail to ■ institute suit' against such postmaster and said sureties for1 two years from and after such default shall be made, then and in that case the said sureties shall not be liable to the United States, nor shall suit be instituted against them.”
    Jones was postmaster from 1830 to August, 1839, during which time a , running account was kept up with him at the Post-Office Department, with, only one rest, namely, in August, 1836, when the account was added up and a balance transferred to a new account. The following is the debit side of the account.
    To balance transferred from old account, . . $ 345 50
    To balances due the United States on his quarterly returns as postmaster, viz.: —
    2,073.77 Prom July 1 to , Sept. 30, ;1836,
    “• Oct. 1 “ Dec. 31, “ 2,488 16
    “ Jan. 1 “ March 31, 1837, . . . . ' 2,746 04
    « April 1 “ June 30, “ . . ■ . . 2,634. 93
    “ July 1 “ Sept. 30, “ ... 2,187 79
    “ Oct. 1 “ Dec. 31. “ . . ' . 2,298 13
    “ Jan. 1 March 31, 1838, . . ■ 2,450 65
    “ April 1 “ June 30, “ . 2,422 47
    “ July 1 “ Sept. 30, “ ■ 2,233 48
    “ Oct. 1 “ Dec. . 31, “ ... . 2,61826
    “ Jan. 1 “ March 31, 1839, ... 2,829 60
    “ April 1 “ April 3, _ 53 11
    $ 27,381 89
    To balance, 5,515 89
    To interest from August,, 1839, to

      The credit side of the Recount ran on continuously as in the following, which is the conclusion of the account: —
    1838.. By amount brought over, . . $18,198. -.64
    Dec. 4, By draft No. 8448, . . . 62 54
    “ 4, “ “ 8452, . 42 94
    “ ‘ 4, “ “ “ 8455, . - . 77 19
    “ 4, “ “ « 8465, . .' . 98 57-
    “ 15, “ “ “ 8745, .- . . • • 50 26
    “ 15, “ “ “ 8746, .... 43 64
    « i7r-« « “ 8768, . . . ' 132 79
    “ ‘ 31, « “ “ 8967, . •. • 88 52
    “ 31, “ “ “ 8968, . . .' '[ XXX XX XXXX ].
    Jan 19, “ “ “ 9100,' . . . . 45 00
    Feb. 19, .“ “ “ 9792, ... 750 00
    “ 20,' “ “ “ 9801, . . . . 863 29-
    March 13, “ “ - “ 271, . . . 1 " 46 04
    “ 13, “ “ 274, . ^ . . 38 56
    Aug. 31, “ cash, ... . . . 1,121 54
    Balance, .... 5,515 89
    $27,381 89
    The substance of the pleadings in the court, below, and the prayers of the respective counsel, are given in the opinion of this court, and need not be here repeated.
    ■ It was argued by Mr. Walter Jones, for the plaintiff in error, and by Mr. Toucey (Attorney-General), for the United States.

      Mr. Jones contended, that although no quarterly balances were struck, yet an analysis ,.of the account would show that the postmaster was in default’continually.
    Thus, on the 30th of September, 1836, (the end of the first quarter after the date of the bond,) the balance against him
    was . -■ . . . . . . . $ 1,894 27
    On the 31st December, 1836, it was . . 1,793 43
    On the. 31st March, 1837, it was , . , . . 3,027 47
    On the 30th June, 1837, it was > • . • 3,866 40
    On the 30th September, 1837, it was . ... 6,020 84
    On the 31st December, 1837, it was . . 5,446 18
    On the 31st March, 1838, it was . . . 3,509 70
    On the 30th June, 1838, it was . • * 3,937 98
    On the 30th September, 1838, it was . . . 4,530 05
    On the 31st December, 1838, it was . . 5,297 61
    And on the 31st March, 1839, it was . . .. 6,384 32
    The sureties were therefore discharged under the operation' of the act of Congress above recited.
   Mr. Justice DANIEL

delivered the opinion of «the court.

The case in the Circpit Court was an action of debt, instituted to recover the amount of a default claimed by the United States of Walter F. Jones, ás postmaster of the Borough of Norfolk, in the State of Virginia. The said Walter F. Jones, having beén appointed postmaster of Norfolk, executed, on the 8th day of August, in the year 1836, his bond, with the plaintiff in error and one Duncan Robertson as his sureties, in the penalty of ten thousand dollars, conditioned for the faithful performance of the duties of his office. In the year 1839, Walter F. Jones was removed from office, the United States claiming against him a balance of $ 5,515.89 as due from him on the 31st of August in the year last mentioned; and to recover this balance, the action on his official bond was instituted in the Circuit Court against him and his sureties. After the institu-; tion of the suit, it was abated as to Walter F. Jones by his death; Robertson made default in the case, and as tó him a writ of inquiry of damages was .executed ; the plaintiff in error alone appeared and made defence, upon four several pleas, as to each of which replication and issue were taken. The first plea interposed was that of condition performed generally. The second and third pleas, presenting substantially the same-de-fence, rely, upon the act of Congress of the 3d of March, 1825, entitled “ An act to reduce into one the several acts establishihg and regulating the Post-Office Department,-” and particularly upon that portion of the act which prescribes that the Postmaster-General shall obtain from the" postmasters their accounts and vouchers for their receipts and expenditures once ini three months, or oftener, with the balances therein arising in favor of the General Post-Office; and that, if any postmaster, or other person authorized to receive the postage of letter^ &c., shall neglect or refuse to render his accounts, and pay over to thé Postmaster-General the.balance due by him at- the end.of. every three months, it shall be the duty of the Postmaster^General to cause a suit to be commenced against the person so neglecting or refusing;. and if default be made by the postmaster at any time, and the Postmaster-General shall fail to institute ' suit against such postmaster and sureties.within two years after such default shall be made, then and in that case the said sureties shall not be held liable to the United States, nor shall suit be instituted against’them. These pleas further aver, that, subsequently to the execution of the bond of Walter F. Jones on the 8th of August, 1836, and during the year 1837, sundry defaults were made by him in failing to pay over money received by him as postmaster, and that these defaults were permitted to remain unclaimed by suit up to the 12th of March, 1840, the period at which this suit was instituted a length of time from the occurrence of those defaults comprising an interval of more than two years.

The fourth plea of the defendant below is simply a general averment, that the causes of action in the' declaration meri-tioned did not occur within two years next before the institution of the suit.

. Th'é only evidence adduced tin this case/on behalf of the plaintiffs below, was the account' certified under the ¿ct of Congress from the Treasury Department against the postmaster, brought down to the 31st of August, 1839, exhibiting a balance in favor of the United States, at that date, of $ 5,515.89; and all the evidence on behalf of the defendant was a letter to him from the Postmaster-General, dated on the 19th of December, 1837, announcing the fact, that a draft had been drawn on the defendant in’favor of the Treasury Department, for the sum of $ 5,000 in specie, and requesting the deposit of that sum with the Bank of Virginia, at Richmond, as the agent for the treasury. Upon the aforegoing pleadings and evidence, the following prayers were made, and .instructions given at the trial.

The attorney for the United States moved the court to-instruct the jury, “that all payments made by the postmaster, Walter P. Jones, to the General Post-Office, after the execution of his official bond, on the 8th of August, 1836, and subsequently to any default at the end of a quarter, without any direction by him or by the Postmaster-General as to the application of said payments, should be applied in the first instance to extinguish each successive default in the order in which it fell due; and if, by such application of said payments, the jury shall believe from the evidence that all of the defaults which occurred two years before the institution of this suit were extinguished within, two years after .the same were respectively, committed, that the. act of Congress,' which limits the .institution of suits against the sureties of a postmaster to two years after the default.of the principal, has no application to this case, and cannot affect in any degree the plaintiffs’ right 'to recover in this action.”

And the counsel for the defendant moved this court to instruct the jury, —“ 1st. That if the jury shall find that the said deputy postmaster, Walter P. Jones, committed any default or defaults in office at anytime or times more than two years before the commencement of this suit, and that such default or defaults were then known to the Postmaster-General; and, further, that the said deputy postmaster continued in default to án equal or greater amount thenceforth, until he was discharged from office; that the Postmaster-General failed to institute, or cause to be instituted, a suit against the said deputy, postmaster and his sureties for two years from and after such default or defaults were made, — then the defendant, Thomas Ap Catesby Jones, one of the sureties of the said deputy postmaster, is not liable to the United States, nor can any suit be maintained against him on the official bond of the said deputy postmaster, wherein ■ the defendant was bound as one of the sureties for any default or defaults committed by the said deputy postmaster.

“ 2d. That as this suit was commenced on the 12th of March, 1840, the jury should inquire whether any default was committed by the said deputy postmaster, Walter F.' Jones, in not duly paying over any balancé or balances of money which became due from him on account of collections by him officially made before the end of the quarter next preceding the. 12th of March, 1838, namely, the quarter ending on the 3lst of December, 1837. ■ And if the jury shall find that the said deputy postmaster was so in default in not duly paying over such balances or balance due from him on account of collections by 'him officially made before the end of the quarter ending the 31st of December, 1837, and that such default was then known to the Postmaster-General, then they should apply, towards the discharge of such balances or balance, all such payments made by the said deputy postmaster during his continuance in office subsequently to the 31st of December, 1837, as they shall find to have been made out of moneys officially collected by him before that date, or out of his private funds ; and they should apply all other payments made by him after that date, and during his continuance in office, towards the discharge of the balances or balance which became due from him on account of moneys by him officially collected after the 31st of December, 1837, during his continuance in office.

“3d. And that, as to the payment of $ 1,121.54, which was made by the said deputy postmaster after he. was discharged from his office, the jury should inquire v hether that payment was made by him out of moneys remaining in his hands on account of collections officially, made by him before the 31st of December, 1837, or out of his own private funds ; or whether that payment was made out of moneys officially collected by him during his continuance in office subsequently to the 31st of December, 1837; and if the jury shall find that that payment was made, and of moneys remaining in his hands of collections by him officially made prior to the 31st of December, 1837, or put of his own private funds, then the jury should apply that payment towards the discharge of the bal-anee which was due from him on the 31st of December, 1837; but if the jury shall find that that payment of $ 1,121.54 was made by the .said deputy postmaster out of money officially collected by him during his continuance in office subsequently to the 31st of December, 1837, then they should apply the said payment towards the balance that accrued and became due from him on account of moneys officially collected by him during his continuance in office subsequently to the 31st of December, 1837.”

“ Whereupon, the court gave the 'said instruction prayed by the attorney for the United States, and refused to give the said instructions prayed by the counsel for the defendant; to which opinion of the court the defendant by his counsel excepted, and prayed the court to sign and seal this bill of exceptions, which is done accordingly.”

The jury found a verdict for. the United States, assessing their damages to the sum of i$ 4,387.09, with interest thereon from the.31st day of August, 1839, till payment; and upon this verdict á judgment was entered for the sum of $ 10,000, the penalty of the bond, to be discharged by the damages and interest by the jury assessed, and the costs of suit.

It is apparent that the only question of law raised in this cause is the question of an appropriation of payments by debtor and creditor, it being insisted, in behalf of the United States, and being so ruled by the court below, that when, at the end of a quarter, there might be a default on the part óf a postmaster, it was competent for him to supply such default, or to extinguish the debt then due from him, by payments made posterior to the end of the quarter; and that, in the event of an omission by the postmaster to appropriate the payments so made by him, it was the right of the government to apply them.at its discretion to the extinguishment of previous balances; and that if, by such application, all defaults occurring within two years previously to the institution of the suit had been extinguished, the act of Congress did not affect the plaintiff’s right of recovery.

On behalf of the defendants below, it is insisted that the receipts by the postmaster, within a given quarter, should be applied, exclusively or primarily, to the debt due from the postmaster for that quarter ; and that, if there should have existed any balances for previous quarters, these should not be extinguished- by subsequent receipts; and that, if permitted to remain for the space of two years without- being claimed (as such balances) by suit on the part of the government, the omission should operate a complete exoneration of the sureties. With respect to the position contended for as above, it may be remarked, that a construction of the act of Congress which, in numerous instances, would interpose -in the way of a debtor obstructions to the voluntary payment of his own debt, and compel the creditor to resort to a reluctant, dilatory, and expensive litigation for its recovery, would never be adopted except under the influence of some controlling principle or necessity, rendering such a proceeding Unavoidable;. and no such principle or necessity can be perceived where a creditor is willing to receive his money, the debtor i's willing to pay it, and the surety assents to, or acquiesces in, the payment. We cannot therefore approve an interpretation of the act of Congress like that assumed in thé defence, tvhich would require' that quarterly balances should at all events; and in opposition - to the will of the parties, justly inferred from their conduct, remain open and unsatisfied, to become the subjects .of future contest. . .

Upon the question of the appropriation of payments, some diversity, and even contrariety, may be found in the doctrines of the courts; yet nothing of the kind, it is thought, can' be deduced from them which should embarrass the adjudication in thjs case. In the general proposition upon this subject, all . the courts agree. It is this: — That the party paying may direct to what the application is to .be made. If he waives his right, the party receiving may select the object, of appropriation. If both are silent, the law must decide.” With the third branch of this proposition, the most fruitful of uncertainty and embarrassment, namely, the decision which the law would make iri the silence or entire forbearance of the parties, .we are here not particularly called on to deal, the subject here being more immediately the right of the creditor to make an appropriation of payments, and the limitations upon that power resulting from the delay or lapse of time, from the character; of the transactions between the debtor and creditor, and the rights of third persons which may be affected by those transactions. In instances of official bonds executed by the principal at different times, with separate and distinct sets of sureties, this court has settled the law to be, that the responsibility of the separate sets of sureties must have reference to, and be limited by, the periods for which they respectively undertake by' their contract,. and that neither the misfeasance nor nonfeasance of. the principal, nor any cause of responsibility occurring, within the period for which one set of sureties have undertaken, can be transferred to, the. period for which alone another' set have made themselves answerable.. Such is the rule established in the cases of The United States v. January and Patterson, 7 Cranch, 572, and of The United States v. Eckford’s Executors, 1 How. 250. The case before us is free from any embarrassment of conflicting interests between separate sets of sureties. In- this case there is but one' bond; it presents the instance of an appropriation of payments between a single debtor and creditor. Upon the question, as understood in this form and with this limitation, there is not a perfect uniformity in the decisions either in England or in this country. The opinion of Sir William Grant in Clayton’s case, 1 Merivale, pp. 604 et seq., has often been referred to .as a high authority in favor of the restriction of the right of the creditor to make the application to the exact period of time at which the payment was made. A close examination of the opinion of this able judge, however .it may show the inclination of his mind on this subject, can hardly be received as an express adjudication upon the point in support of which it is adduced. In Clayton’s case,' page 605, speaking of the right of appropriation in the creditor in the absence of express direction, Sir ffm. Grant says: — " There is certainly a great deal of authority for this doctrine; with some shades of distinction, it is sanctioned by the cases of Goddard v. Cox, 2 Strange, 1194; of Wilkinson v. Sterne, 9 Mod. 427; of Newmarch v. Clay, 14 East, 239; and of Peters v. Anderson, 5 Taunt. 596.” He proceeds: — There are, however, other cases, which-are irreconcilable with this indefinite right of election in the creditor, and which seem, on the contrary, to imply a recognition of the civil law principle of -decision. Such are, in particular, the cases of Meggott v. Mills, 1 Ld. Raym. 287, and Dowe v. Holdwofth, Peake’s N. P. 64. The cases then set up two conflicting rules, — the presumed intention of the debtor, which, in some instances at least, is to govern, and the ex post facto election of the creditor, which, in other instances, is to prevail. I should therefore feel myself a good deal embarrassed, if the general question of the creditor’s right to make the application of indefinite payments were now necessarily to be determined. But I think the present case is distinguishable from any of those in which that point has been decided in the .creditor’s favor.” Again, on page 609, we find the following statement from this same judge, namely, that the creditor received his account drawn out by his debtor, the banker who kept the account, and made no objection to it whatever, and the master stated in his report that the silence of the customer (the creditor), after the receipt of his banking account, is regarded as an admission of its being correct.. Both creditor and debtor must therefore,” says the judge, be considered as having concurred in the appropriation.” This case has been adverted to somewhat at length, although it is often referred to as.high and express authority, with the view of showing that it does not adjudge directly the point of the creditor’s discretion in the appropriation of payments, however strongly *it may intimate the inclination of the Master of the Rolls as to that question. Later decisions in the English courts would seem to be wholly irreconcilable with the remarks of Sir William Grant , in Clayton’s case. Thus, in Simpson v. Ingham, decided in 1823,' and reported in 2 Barn. & Cres. 65, Bayley, Justice, speaking of the right of creditors to appropriate payments, uses this language :

' — “ It has been insisted, that, at that period of time, they had no right so to do, because they were precluded by the entries which they had already made in their own books in the intermediate space of time. If, indeed, a book had.been kept for the common use of both parties as a pass-book, and that had been communicated to the opposite party, then the party making such entries would have been precluded from altering the account; but entries made by a man for his own private pur- • poses are not conclusive on him until he has made a communication on the subject of those entries to the opposite party.' Until .that time, he has the right to apply the payments as he thinks fit.” Holroyd, Justice, in the same case, says: — The persons paying the money not having made any direct application of it, the right of making’such application devolved on the receivers; and if they have done no act which can be considered as such an application, it is equally clear, that, although they did not. apply it at the moment of payment, they would have the right to make the application at a subsequent period. The question therefore is, whether, from any entry in the books, there appears to have been a complete election by them to apply the payments in any other way than they are applied in the accounts which have been actually delivered. Now, these entries not having been communicated to the opposite, party, it seems to me. that the election was not complete. • The effect of making the entries in their own private bocks shows ' only that the idea of so applying the payment had passed in ' their own minds. It is much the same thing as if they had expressed to a stranger their intention of making such applica- ' tion of the payments, and had afterwards refused to carry such' intention into effect.” Still later (in 1834), in the case of Philpot v. Jones, 2 Adolph. & Ellis, 41, Denman, Chief Justice, says: —“ The defendant made no application of that payment ; the plaintiff therefore may elect at any time to appropriate it to this part of his demand.” And so Tauiiton, Justice, in the same case: —“ Here the £17 were paid without any application to the particular items of the account. The plaintiff then might apply that payment to the items in question ; and he was not bound to tell the defendant at tide time that he made such application; he might make it at any time before the case came under the consideration of the jury.” In Smith, v. Wigler and Turnicliffe, 3 Moore & Scott, 175, Tindall, Chief Justice, said that the creditor must make the appropriation at the time the money comes to his hands. Yet, in Mills v. Fowkes, 5 Bingham’s New Cases, 455, the same Chief Justice said, that, in conformity with the rule in Simpson v. Ingham, the creditor may make the application at any time before action brought. Bosanquet, Justice, said, in the same case, that the receiver might appropriate the payment, if the debtor had not, at any time befóte action commenced; and Coltman, Justice, that, notwithstanding the doubt expressed by the Master of the Rolls in Clayton’s case, the more correct view seemed to be, “ that the creditor is not limited in point of time.”

In the case of The Mayor of Alexandria v. Patton, reported in 4 Cranch, 320, Chief Justice Marshall said, in pronouncing the decision: — “ It is a clear principle of law, that a person owing money on two several accounts, as upon a bond and simple contract, may elect to apply his payments to which account he pleases; but if he fails to make the application, the election passes from him to the creditor. No principle is recollected which obliges the creditor to make the election immediately. After having made it, he- is bound by it; but until he makes it, he is free to credit either the bond, or the simple contract.” So, tob, Justice Story, in delivering the decision in the case of Kirkpatrick v. The United States, 9 Wheaton, 724, says, — The general doctrine is, that the debtor has a right, if he ■pleases, to make the appropriation of payments ; if he omits it, the creditor may make it; if both omit it, the law will apply the payments according to its own notions of justice. It'is certainly too late for either party to claim a right to make an application after tfye controversy has arisen, and a fortiori at the time of the- trial.” The two cases last cited, with those of The' United States v. January, and of The United States v. Eckford’s Executors, comprise the substance, it is believed, of all that has been ruled by this court upon the subject of the appropriation of payments. There are several State decisions upon this subject,^which are not adverted to; but .amongst these, if examined, there will be found some contrariety. An attempt to reconcile any discrepancies, either real or apparent, amongst either the English or American cases, would seem to be at least useless here, inasmuch as, with regard to the only principle connected with the appropriation of payments which we deem to be involved in this Gase, all the decisions concur. There is not even a decision to be found which denies to the creditor, where the debtor has been quiescent, the right to appropriate payments at the periods at which they shall be made; and the concession of. this restricted right we hold to be decisive of the character and fate of the transaction under review. That transaction exhibits. one general account of debit and credit continued from its commencement to its close,.when, and at no prior time, the balance is struck. On the due side of the account are presented the amounts received by the postmaster for postages within the periods , there stated, and on the other side are entered to his credit the sums paid by him, either in cash or in drafts from the Postmaster-General, in an exact conformity with the dates at which the transactions occurred. By this application any balance which may have existed at the end of a previous quarter was extinguished, and sometimes overpaid, and the account thus brought down to the final balance. To this mode of application no just objection can be perceived ; the parties interested in the payments were the same throughout, and equally liable for all; the payments being made .generally, and without any appropriation by the debtors who were thus liable, it was the undoubted right of the crelitor to apply them to any sums an-tecedently due. Indeed, in. the case of .The United States v. Kirkpatrick, this court say, that “in long running accounts, where debits and credits are perpetually occurring, and no balances otherwise adjusted than for the purpose of making rests, we are of opinion that payments ought to be applied to extinguish the debts according to the priority of time.” In this cáse they have been so applied, and in strict conformity with the times.at which such payments were made.

We conclude our view of this question in the language of Judge Hopkinson, in the ease of The Postmaster-General v. Norvell, Gilpin, 134: — “ The application of the moneys received in a subsequent quarter to the payment of the debt Or balance antecedently due béing perfectly correct and lawful, it follows that no part of the default for. which suit, is brought accrued two years before; on the contrary, all the balances antecedent to the last quarter were extinguished by the successive payments, and the final balance falls on the last quarter.” A contrary result could be attained only by changing the manner in which, the accounts have been kept, and by arranging the actual trans-. actions as they have occurred between the parties, —a proceeding which we think is required neither by the letter nor the objects of the act of Congress. The judgment of, the Circuit Court should therefore be, and is hereby, affirmed.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Virginia, and was argued, by counsel. On consider-, ation whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause bé, and the same is hereby, affirmed.