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310) "THE STATE OF RHODE ISLAND The State of Rhode Island, in a bill against tho and Providence Plantations, Complainant,

State of Massachusetts, for the settlement of the

boundary between the States, had set forth certain V.

facts on which she relied in support of her claim THE STATE OF MASSACHUSETTS, De- for the decision of the Supreme Court, that the fendant.

boundary claimed by the State of Massachusetts

not the true line of division between the Chancery practice-actions between States as

States, according to their respective char- [211

ters. To this bíll the State of Massachusetts put to boundaries-pleading, two defenses in same in a plea and answer; which the counsel for the bad.

State of Rhode Island deemed to be insufficient.

On a question whether the plea and answer were By a rule of the Supreme Court, the practice of insufficient, the court held that as, if the court the English courts of chancery is the practice in proceeded to decide the case upon the plea, it must the courts of equity of the United States. In Eng. assume without any proof on either side, that the land the party who puts in a plea, which is the facts stated in the plea are correctly stated, and subject of discussion, has the right to begin and incorrectly set forth in the bill, then it would be conclude the argument. The same rule should pre- deciding the case upon such an issue as would vall in the courts of the United States, in chaucery strike out the very glst of the complainant's case ; cases.

and exclude the facts upon which the whole equity In a case in which two sovereign States of the is founded, if the complainant has any. The court Onited States are litigating a question of boundary held that it would be unjust to the complainant between them, in the Supreme Court of the United not to give an opportunity of being beard accordStates, the court have decided that the rules anding to the real state of the case, between the parpractice of the Court of Chancery should substanties; and to shut out from consideration the many tially, govern, in conducting the suit to a inal facts on which he relles to maintain bis suit. Issue. 12 Peters, 735–739. The court, on re-ex. It is a general rule that a plea ought not to conamining the subject, are fully satisfied with

the de- tain more defenses than one. Various facts can cision.

never be pleaded in one plea, unless they are all In a controversy where two sovereign States are conducive to the single point on which the defend. contesting the boundary between them, it is the ant means to rest his defense. duty of the court to mould the rules of chancery The plea of the State of Massachusetts, after setpractice and pleading in such a manner as to bring ting forth various proceedings which preceded the case to a final hearing on Its merits. It is too and followed the execution of certain agreements important in its character, and the interests con- with Rhode Island, conducing to show the obligcerned too great, to be decided upon the mere atory and conclusive effect of those agreements technical principles of chancery pleading,

upon both States, as an accord and compromise of In ordinary cases between individuals, the Court a disputed right; proceeded to aver that Massaof Chancery has always exercised an equitable chusetts had occupied and exercised jurisdiction discretion in relation to its rules of pleading, when- add sovereignty, according to the agreement, to ever It has been found necessary to do so for the this present time; and then sets up as a defense purposes of justice. In a case in which two 80V- that the State of Massachusetts had occupied and ereign States are contesting a question of boundary, I exercised jurisdiction over the territory from that the most liberal principles of practice and pleading i time up to the present. The defendants then plead. ought, unquestionably, to be adopted, in order to ed the agreements of 1710 and 1718, and unmolest. enable both parties to present their respective ed possession from that time, in bar to the whole claims in their full strength. If a plea put 1p by bill of the complainant. The court held that this the defendant may in any degree embarrass the plea is twofold: 1. An accord and compromise of complainant 10 bringing out the proofs of his a disputed right. 2. Prescription, or an unmolest. claim on wbich he relies, the case ought not to be ed possession from the time of the agreement. disposed of on such an issue. Undoubtedly, the de. These two defenses are entirely distinct and sepafendant must have the full benefit of tbe defense rate, and depend upon different principles. Here which the plea discloses, but at the same time, the are two defenses in the same plea, contrary to the proceedings ought to be so ordered as to give the established rules of pleading. The accord and comcomplainant a full hearing on the whole of this promise, and the title by prescription united in case.

this plea, render It multifarious; and it ought to According to the rules of pleading in the chan. be overruled on this account. cry courts, 1f the plea is exceptionable in its form and character, the complainant must either set it down for argument, or he must reply to it, and put in issue the facts relied on

the plea.

Term, 1838. The State of Rhode Island, If he elects to proceed in the manner first men in 1832, had filed a bill against the State of tioned, and sets down the plea for argument, be Massachusetts for the settlement of the bound. then admits the truth of all the facts stated in the plea, and merely denies thelr sufficiency in point of ary between the two States; to which bill Mr. law to prevent the recovery. If, on the other hand, Webster, at January Term, 1834, appeared for he replies to the plea, and denies the truth of the the defendant; and on his motion, the cause facts therein stated, he admits that if the particular facts stated in the plea are true, they are then

was continued until the following term, when sufficient in law to bar his recovery; and if they a plea and answer were filed by him, as the are proved to be true, the bill must be dismissed, counsel for Massachusetts. Before January without a reference to the equity arising from any Term, 1837, the State of Rhode Island filed a other facts stated in the bill.

If a plea upon argument is ruled to be sufficient replication to the plea and answer of the deCourt of Chancery would according to its uniform motion to withdraw the same. in law to bar the recovery of the complainant, the fendant, at the same time giving notice of a practice, allow his to amend, and put in Issue, by I proper replication, the truth of the facts stated At January Term, 1838, the counsel for In the plea. But in either case the controversy Massachusetts moved to dismiss the bill fled would turn altogether upon the facts stated in the by the State of Rhode Island, on the ground strict and technical character of those rules of that the court had no jurisdiction of the cause. pleading, and the danger of injustice often arising This motion was argued by Mr. Austin, the from them, which has given rise to the equitable Attorney-General of Massachusetts, and by discretion always exercised by the courts of chan. cery in relation to pleas. in many cases, when Mr. Webster, for Massachusetts; and by Mr. they are not overruled, the court will not permit Hazard and Mr. Southard for the State of them to have the full effect of a plea : and will, in Rhode Island; and was overruled. 12 Peters, Bope cases, leave to the defendant the benefit of

657. It at the hearing; and, in others. will order it to stand for an answer, as 10 tbe judgment of the Afterwards, at the same term, Mr. Webster, court, may best subserve the purposes of justice. on behalf of the State of Massachusetts, as her

L-Mr. Justice Story not sit in this case. attorney and counsel in court, moved for leave

NOTE.-Judicial settlement of state boundaries, to withdraw the plea filed in the case on the me note to 36 L ed. U. 8. 798.

part of Massachusetts; and also the appearance

T

which had been entered for the State. Mr. of meeting, who desired the cominissioners Hazard moved for leave to withdraw the gen- would adjourn to a second meeting, which eral replication to the plea of the defendant in was assented to, and the meeting fixed at bar, and to amend the original bill.

*the same place, in October following, (*213 212*] *The court, after argument, ordered in case their respective governments consented that if the counsel on behalf of Massachusetts thereto." shall elect to withdraw the appearance before The second report was made by “The entered, that leave be given for the same; and commissioners on the part of Massachusetts the State of Rhode Island may proceed ex to the Legislature of that State, Feb. 21, 1792." parte. But, if the appearance be not ith- It is stated to be a report "that the commisdrawn, that then, as no testimony has been sioners appointed by an Act of the Legislature taken, the parties be allowed to withdraw or of the Commonwealth of Massachusetts passed amend the pleadings under such order as the on the 8th day of March, 1791, for ascertaining court may hereafter make. 12 Peters, 756. the boundary line between this Commonwealth

At January Term, 1839, Mr. Southard, on and the State of Rhode Island, have carefully behalf of the State of Rhode Island, stated that attended the services assigned them, and take the bill filed by the State had been amended; leave to report their doings." and moved that a rule be granted on the State The report states “that on the 15th of Auof Massachusetts to answer in a short time, 80 gust, 1791, we, by agreement, met the commisthat the cause might be disposed of during the sioners from the State of Rhode Island, at term.

Wrentham, in this Commonwealth, and after The court, the bill of the State of Rhode exchanging the powers under which we sev. Island having been amended the second day of erally acted, we proceeded to discuss the subthe term, ordered that the State of Massachu-ject that gave rise to our appointments, in the setts should be allowed until the first Monday course of which, it appeared that the State of in August, 1839, to elect whether the State Rhode Island, from their construction of this will withdraw its appearance, pursuant to the expression, 'three miles south of Charles leave granted at January Term, 1838; and if River, or of any and every part thereof,' in the withdrawn within that time, the State of ancient charter of the Colony of Massachusetts, Rhode Island should be, thereupon, at liberty and as the south bounds of the same claim to proceed ex-parte. If the appearance of the near three miles north upon this commonState of Massachusetts should not be with wealth than the present line of jurisdiction bedrawn before the first Monday in August, tween the two governments, the commissioner 1839, the State to answer the amended bill be of the Commonwealth, from the circumstance fore the second day of January, 1840. 13 Pe- that the branch, now called Charles River, and ters, 23.

from which the claim of the State of Rhode The amendments made by the complainants Island would run three miles south to ascertain in the bill were, chiefly, the insertion, by ref- the south boundary of the Commonwealth, could erence to reports of the commissioners of the not have been known by the name of Charles at Colony of Massachusetts to the government of the time of granting the Massachusetts charter Massachusetts, while a colony, on the 13th of in 1621; and from this line being ascertained April, 1750, and on the 21st of February, 1792, ! and fixed at a different place by commissioners to the Legislature of the State of Massachu-chosen by the colonies of Massachusetts and setts, appointed by an act of the Common- New Plymouth, in 1667, at a time when the wealth of Massachusetts passed on the 8th day | intentions of the grantor and grantees must of March, 1791, “ for ascertaining the boundary have been known, are convinced that the line between this Commonwealth and the State claim of the State of Rhode Island is illof Rhode Island.”

founded; but to complete, if possible, the inThe report of April 13th, 1750, states that tentions of our appointments, and that the disthe commissioners on the part of the Colony of putes between the governments might be amiMassachusetts met the gentlemen appointed on cably adjusted, we united with the commisbehalf of the Colony of Rhode Island, on the sioners of the State of Rhode Island, in the 10th of April, 1750, "and spent part of that agreement as in number one. and the next succeeding day in debating on “In examining and comparing the charter said affair with those gentlemen;" and produced of the two governments, granted by the suc. the agreement of 1710, 1711. “Sundry plans, cessive kings of England, under which both etc., were offered to run and review with them claim, it appears that the first charter to the the said line, but they refused to go, or join Colony of Massachusetts was granted by King us herein, but insisted on our going with them James I. in 1621, and resigned a certain terri. to a certain place on Charles River, in Wren- tory to that colony, bounded by an east and tham, from which they a few months since west line, which was to be three miles south of measured three miles south, and then extended Charles River, or of any or every part thereof; a west line with the variation west, to the west the same expression is also used for limiting a bounds of that colony, as they claim as the part of the bounds of the old Colony of Ply. west bounds of that colony, as they informed mouth, and was probably copied from their us; which bounds they claim as their north charter into the Massachusetts, to prevent an bounds; and is about four or five miles north interference of claims; the same line is adopted ward from Woodward and Saffrey's Station." in the charter from King Charles II. to the The report also states “that on the return of Colony of Rhode Island, granted in 1663, and the commissioners to the place of meeting, the is their northern boundary. The erection of a Rhode Island commissioners not having accom- third government, referring to the same bounds, panied the Massachusetts commissioners to the seems to have rendered it necessary for Ply. station, they found them at the original place mouth and Massachusetts to ascertain their 424

Peters 14.

bounds; accordingly, those two governments of meeting for them to begin running the lines 214') in 1664 appointed commissioners *to sur- that had thus been determined, and they gave vey the most southern branch of the Charles information thereof to the governor of this River, and to lay off from thence three miles | their province; but the Legislature not being due south as their boundary line by charter; convened until some time after the period af. this was accordingly done, and they fixed upon fixed for the Rhode Island commissioners to a large tree, then known and since noted by begin the survey, they thought it unnecessary the name of the Angle tree, as the north line for them to join in the commission. These of Plymouth, and the south line of Massachu | line we perambulated in company with the setts. The knowledge and name of the place is commissioners of the State of Rhode Island, preserved, and the Commonwealth, in order to and excepting one or two stations between perpetuate it, have erected in the place of the Providence and Bristol, which were well astree, the remains of which are now to be seen, certained, we found that they had encroached a handsome stone monument, which bears the upon this Commonwealth from one quarter to name of Angle Tree, and is explained by suit- three quarters of a mile in width. We were able inscriptions on the different faces of it. attended by suitable persons, approved by This the commissioners apprehend to have both parties, for making the necessary obbeen the true and original boundary, and is servations and surveys. Here, probably, all three miles south of the most southerly, waters further dispute relative to boundary lines with of Charles River. It does not appear that the the colony of Rhode Island would have forevColony of Rhode Island ever expressed any dis- er ended, had it not have been for the rage of satisfaction respecting their northern boundary political parties at this time within that coluntil 1716, or thereabouts, which finally ended ony; one of which, to effect a decided majority, in the appointment of commissioners by both was extremely anxious for an extension of governments in 1718, who fixed a new station northern jurisdiction. Influenced by these moabout two miles north of the Angle Tree, and tives, and perhaps in some measure by their which was called after the surveyors, 'Wood- late success, they in 1740 brought forward a ward and Saffrey's Station'.” This place is new claim for extending their northern boundwell known, although no records of it have ary beyond the line established in 1718; and to been preserved, or the proceedings of the com support that claim they appointed commissionmissioners ratified by either government; yeters in 1750 to examine what is now called the line drawn from it has been practiced upon Charles River, and from the most southern part as the line of jurisdiction between the govern of the same, to survey off three miles as the ments from that to the present time. This boundary of Massachusetts, agreeably to their Commonwealth then lost two les in width charter. A plan of this survey was laid before along the northern line of Rhode Island, and us, and copy of it herewith presented. We seems to have acquiesced in the agreement upon have inserted our own survey of what we conprinciples of generosity. The ancient charter ceive to be the most southern part of Charles of New Plymouth and Rhode Island were ir- River, as intended by the charter, above Whitregularly bounded on one another: the former, ing's Pond, and the position of the Angle Tree. as was supposed, by the shores of the NarraIt may not be unnecessary to observe that at ganset Bay, the latter by three miles east of the southern head of what we call Charles those shores; this interference of boundary, River, is a place known by a large chestnut however, appears not to have given any dis- tree; thence the stream descends to Whiting's content, as the date of the charter of New Ply: Pond, where it forms a considerable lake, and mouth was prior to that of Rhode Island; and afterwards resuming its proper shape (and now the peaceful jurisdiction to the shores of Nar: known by the name of Mill River or brook), raganset Bay was enjoyed not only by the old pursues its course in a northerly direction till Colony of Plymouth, but by Massachusetts (af- it joins that stream which is known by the ter these two colonies were united by the chart- name of Charles River, the confluence of the er of 1691), down to the year 1730, at which two streams six miles more northerly than the time the Colony of Rhode Island passed an act chestnut tree at the southern head of Charles; claiming the jurisdiction of the territory on after perambulating the bounds now practiced their eastern boundary, granted to them by upon, and ascertaining their deviations from charter, in this act and in the subsequent dis- the stations to which they ought to have been pute and determination of the subject, not a fixed, and learning the principles upon which claim, nor the limitation of one, but that their Rhode Island supports her claims, and the extent northern boundary was satisfactory, as estab- of them, we adjourned to the 5th day of Delished in 1718. In 1740 the King of Great Brit-cember last, then to meet at Providence, in ain, who was then the sovereign of these States, the State of Rhode Island; at which time and appointed commissioners to hear and determine place we met with the commissioners from the dispute then existing between the govern Rhode Island, and after fully discussing the ments, who, after hearing the parties, came to several claims, and endeavoring to conciliate the determination as in number two, by which the difference between the two States, agreethe extent of Rhode Island charter was allowed, ably to the powers of our commission, we were and the jurisdiction of Massachusetts cut off convinced that no agreement can be made at from the shores of Narraganset Bay. This present with them unless we yield a valuajudgment, unexpected by either party, was ble territory, to which they have no claim, and disapproved of by both, and they accordingly which we hold not only by repeated charters, appealed to the king in council, where, however, but by the agreement of the State of Rhode it was ratified in 1746. As soon as this in. Island in 1718; and so far from its appearing formation was received by the Colony of Rhode *that encroachments have been made [*218 Island, they proceeded to appoint their by this Commonwealth on that State, that 215'] *commissioners, and assigned the time the contrary is notoriously the fact.

423

The counsel of the State of Massachusetts, cause for discovery and relief, it has answered after January Term, 1839, and in conformity its office, and must be sustained. The case with the order and leave of the court then giv. seems to the respondent in no material degree en, filed a plea and answer to the amended bill to differ from a general demurrer to the bill; of the State of Rhode Island. The plea and except only that the allegations of the plea answer were the same, in all important partic. control those of the bill, and are admitted to ulars, as that originally filed at January Term, be true pro hac vice only. 1834. The plea and answer conclude-"And Before the sufficiency of the plea can be as. the defendant saith that there is no other mat. certained, the matter to be answered must be ter or thing in the complainant's said bill of examined and understood. The bill sets forth complaint contained, material for this defend the plaintiff's title. It is of a form adopted ant to make answer unto, and to which said not very remotely, into the practice of chan. defendant has not already pleaded and an cery; and requiring, or at least admitting, swered as aforesaid, all whích matters and what the books call, without much propriety, things pleaded and answered, as aforesaid, the an anomalous or irregular plea; thus applying defendant is ready to verify and maintain as terms to the plea, which in fact belong to the the court shall order. Wherefore said defend. bill. It introduces, in anticipation, the subject ant prays to be hence dismissed, with costs." matter of the defense, and attempts to avoid

All the matters in the bill, material in this the effect of it by special allegations. Sub. case, and in the plea and answer, with the ex. stantially, the bill enumerates and recites the ception of the amendments given on pages 213- letters patent of the council established at 215, ante, are stated fully in the report of the Plymouth in 1621; the deed of said council to case in 12 Peters, 657, and in the opinion of Sir Henry Roswell and others, of 19th March, the court delivered at this term by Mr. Chief 1628; the first charter of Massachusetts, in Justice Taney.

1629, by Charles I. From all these, one fact The case was before the court, on the suffi: only is material, and that is not in dispute at ciency of the plea and answer. It was argued all, viz., that Massachusetts became a colony by Mr. Hazard and Mr. Whipple for the State of the British crown at the settlement of it by of Rhode Island, and by Mr. Austin, Attorney. the Pilgrims, and that its southern boundary General of Massachusetts, and Mr. Webster, for line first mentioned in the letters patent of the defendant.

1621, and repeated in the words whenever ocBefore the argument was proceeded in, a casion required, was by "all those landes and question arose between the counsel in the case hereditaments, whatsoever, lyeing within the on the right of the counsel for the complain. space of three Englishe myles on the south ants to begin and conclude the argument. parte of the saide River, called Charles River,

The court held that by a rule of the court, or any or every parte thereof." the practice of the English courts of chancery It is obvious from these public papers, the is the practice of the courts of equity of the effect of which is admitted by both parties, that United States. On looking into the books of the southern boundary of Massachusetts was practice in the English courts of chancery, it described with sufficient accuracy; and the appears that the party who puts in the plea only matter to be done to fix it with perfect wbich is the subject of discussion has the right certainty was to run on the earth, and through to begin and conclude the argument. The the then uninhabited wilderness, the line de same rule should prevail in the courts of the scribed in the charter. United States in chancery proceedings.

The bill proceeds, after referring to the surMr. Austin, for the State of Massachusetts. render of the letters patent of the council of

The question before the court is on the suffi- Plymouth, in 1635, 17th June, and the plant. ciency of the plea in bar to the plaintiff's de ing and purchasing of what now is the territory mand, both for discovery and relief. The plea of Rhode Island; which facts are not material is open to any just exception, either as to its or controverted; to recite the charter of the form or substance; but as it purports to be an Colony of Rhode Island, granted by Charles answer or bar to the plaintiff's complaint, its II. on the 8th July, 1673, whereby Rhode sufficiency must materially depend on the struct- Island is bounded “northerly on the said south ure of the bill in which that complaint is set or southerly line of Massachusetts." forth. Any answer is sufficient to a bill which The bill states, also, the dissolution of the is so framed as to require none. The respond. first charter of Massachusetts by the Court of ent contends that this opens, substantially, Chancery in England, the new charter of Wil. the whole merits of the case. Bogardus v. liam and Mary, in October, 1691, re-establish: Trinity Church, 4 Paige, 178.

ing on this line the ancient boundary in the The sufficiency of the plea is very different same words, and the Declaration of Independfrom the truth of it. For the purpose of the ence of the United States; documents not espresent inquiry, all its allegations are to be sential to any controverted *point in [*218 taken to be true. If the plaintiff denies any of this suit, unless it be, as before was contended 217"] them, he has another *mode of proceed by the Attorney-General of Massachusetts, and ing: it is understood also that all allegations now again respectfully insisted upon, that the made in the bill, and denied by the plea, are, Declaration of Independence repealed all these for this hearing, to be taken according to the charters, and established the several former plea, and not according to the statement of colonies in their new character of sovereign them in the bill; and it is admitted that what. and independent States, by the line and boundever is stated in the bill and not controverted ary actually enjoyed and possessed by them by the plea, is in this stage of the cause to be respectively, on the day of their political nativ. taken as true. If, nder these circumstances, ity-the 4th of uly, 1776. the plea leaves the plaintiff without a sufficient All these documents not controverted by the

plea, and not to be denied with truth, are ad- | possession in conformity with such agreement mitted with all their legitimate consequences. for more than a century? The bill then proceeds to state that disputes In the first place, it is apparent in the bill, had arisen, not in regard to any charter, or and distinctly admitted by the learned counsel where the line ought to be drawn in conform of Rhode Island, that no fraud is charged to ity with the provision of those instruments; anybody in these transactions; but it is alleged but where on the earth's surface a line corre that the parties acted under a mistake. It is sponding with the charters should be described. averred that the commissioners of MassachuIt sets forth the appointment of commissioners setts, believing, no doubt, that the point which by each colony, "to settle the boundary line;" | they designated as Woodward and Saffrey's the meeting of those commissioners; and their Station was three miles, and no more, from unanimous agreement, certified under their Charles River, affirmed to the Rhode Island hands on the 19th January, 1710, 1711; "that commissioners, that it was the proper place of & stake set up by N. Woodward, and S. Saff- beginning for the line, and that 'the Rhode rey, in 1642, and since often renewed, in lati. Island commissioners, taking the word of the tude forty-one degrees, fifty-five minutes, be- Massachusetts commissioners for true, or search. ing three English miles distant southard from ing for themselves and coming to the same the southernmost part of Charles River, agree conclusion, or examining the map then before ably to the letters patent for the Massachu. them, made by Woodward and Saffrey, were of setts province, be accompted and allowed on the same opinion, and jumped together in judg. both sides the commencement of the line,” etc. ment; and that the commissioners of the two

The commissioners having thus ascertained colonies, in 1718, in running out the line, were a point of beginning, and it being necessary to actuated by the same means, and established protract the line from that point which they the line, which, as ever before, so ever since, did not do at that time, the bill recites the ap- has been the actual line of division between pointment of other commissioners by the two these neighboring sovereignties. And that in colonies, and their meeting at Rehoboth, on all this, without fraud or misrepresentation, the 22d October, 1718, to protract the line; the there is, nevertheless, a fatal mistake. fact that they re-affirmed the correctness of the It is admitted that all parties acquiesced in place of beginning, ran the line as described by the doings of the commissioners until 1749, them, certified their proceedings under the more than thirty years; when Rhode Island hands and seals of a majority of their whole discovered, as is alleged, that the stake of number, and of the delegation of each colony; Woodward and Saffrey was more than three and that the General Assem of Rhode Island miles, viz., seven miles from Charles River, and passed a resolution on the 26th October, 1718, that the Rhode Island commissioners and the ordering that the return be accepted, and placed Rhode Island Legislature, acting under this to record in the colony books.

mistake, are not bound by the treaty, comproIt seemed to the counsel of Massachusetts mise, arbitration, or award, and have now a that if the bill had stopped here there would right to claim for that cause, by the interven. be nothing for the respondents to answer, be- tion of this honorable court, to set aside the cause it is everywhere admitted in the bill that conventions of 1710 and 1718, and re-examine the line thus run is that to which Massachu. and adjust the boundary on their present insetts laid claim before Rhode Island was in ex. formation, and by the letter of their ancient istence; the line to which Massachusetts was charters, as they are now understood by the possessed, and over all territory north of which plaintiff. she was in the actual exercise of jurisdiction The residue of the bill recites the ex-parte when the charter of Rhode Island was granted; proceedings of Rhode Island to determine the and that is all she had ever claimed, or now true line, independent of the agreements of claims in that direction, by charter, possession, 1710 and 1718, and the various attempts made or title of any kind. It would seem, too, that to induce Massachusetts to re-open the matter; both parties to this suit admitted the line by all which were ineffectual, as is confessed by the charter; that they intended to describe on the fact, distinctly admitted, that for all time the earth the line so designated in the charter; , since Massachusetts has been a government, that they did so by commissioners mutually ap colonial, provincial, federative, or sovereign, pointed on two different occasions, at the inter; she has had the actual, undisturbed, quiet val of seven years; and that the plaintiff had possession *and occupation, jurisdiction [*220 accepted and recorded their proceedings, as and control of and over the premises in dispute. satisfactory and conclusive, at the time, now Now, it seems to the counsel of the respond. more than one hundred and twenty years ago. ent, that to this complaint, thus set forth, a 219*] *But the plaintiff having thus insert. demurrer might safely have been filed, and ed the bar matter in his bill, proceeds to give that to a bill to which a demurrer would be bis answer to it. It is obvious, therefore, that sustained, any plea or answer must be deemed to this answer, and to so much of this answer

sufficient. Such bill contains its own answer. only as is material to set aside the bar matter, It incorporates the defense; and whatever else is the respondent bound to reply. The plaintiff may be said of the plea, it cannot be deemed has furnished for the respondent a sufficient inadequate or insufficient for the defense. defense; he has set up a bar to his own further ord should contain only the plaintiff's colored

But the respondent is unwilling that the reo proceedings, and unless he removes the bar of view of the treaty, covenant, or arbitrament, bis own procuring, the respondent has no need entered into in 1710 and 1718. However safe to make any reply. What, then, is the allega- it would be to admit such a mistake as the tion in the bill which professes to be sufficient plaintiff alleges, yet the facts afford a stronger to countervail an agreement of this sort, and of ground, and the respondent avails himself of it.

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