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averments, counteracted by any allegations in chusetts commissioners, and with an equal and the bill, not denied by the plea, constitute a full knowledge of the facts and circumstances bar to the right asserted by the plaintiff. of the case. And the inquiry is, whether a

The plea states that in the year 1642, Wood. mistake committed under such circumstances ward and Saffrey erected a station or monu- affords a sufficient ground on which to set aside ment at a point then taken and believed to be the agreements. on the true and real boundary of Massachu. I will first consider the principles of this case, setts, on the south. And that in 1710, this as they would apply to a controversy between station was agreed to be the true boundary, individuals respecting a common boundary. and the place from which the line should be The mistake of a fact, unless it operates as run, by Dudley and Jenckes, commissioners a surprise or fraud on the ignorant party, af. appointed by Massachusetts and Rhode Island, fords no ground for relief in Chancery. I and who were authorized to settle and estab- Story's Eq. 160; 2 Ball & Beatty, 179, 180; 4 lish the line. And that afterwards, in the year Bro. Ch. Rep. 158; 6 Ves. 24. 1718, other commissioners were appointed by The ground of relief in such cases is, not Massachusetts and Rhode Island, to whom the mistake or ignorance of material facts ample powers were given to compromise and alone, but the unconscientious advantage taken settle forever the boundary, and who estab of the party by the concealment of them. For lished the same place of beginning. And that if the parties act fairly, and it is not a case the report made to Rhode Island by its com- where one is bound to communicate the facts missioners, setting forth the agreement, was to the other, upon the ground of confidence or accepted by its Legislature, and duly recorded otherwise, the court will not interfere. I and ratified.

Story's Eq., 160; 9 Ves. 275. And the plea avers that the Massachusetts It is essential, in order to set aside such a commissioners were guilty of no fraud or mis. transaction, not only that an advantage should representation, and that both agreements were be taken, but it must arise from some obligaentered into with perfect fairness and in good tion in the party to make the discovery; not faith, and with full and equal knowledge by an obligation in * point of morals only, (*274 the parties. That the claims of the plaintiff, as but of legal duty. 2 Bro. Ch. 420; 1 Har. Eq. set forth in the bill, were fully heard, dis- bk. 1, ch. 3, 4, note n. cussed, and settled, and that Massachusetts Equity will not relieve where the means of has retained


and exercised information are open to both parties; and 273*] * jurisdiction over the country north of where each is presumed to exercise his own the line thus established until the present time. judgment. 2 Wheat. 178, 195. Where

These are the facts, substantially, on which agreement for the composition of a cause is the defendant relies, as a bar to the plaintiff's fairly made between parties with their eyes bill.

open, and rightly informed, a court of equity The principal ground of relief alleged in the will not overhaul it, though there has been a bill is the mistake in fixing the place from great mistake in the exercise of judgment. 1 which the line was to run more than seven Ves. 408; 1 Story's Eq. 163. miles south of Charles River; whereas, by the In like manner, where the fact is equally charter of Massachusetts, it was to be but unknown to both parties, or where each has three iniles south of that river.

equal and adequate means of information, or By the charter, the boundary was declared where the fact is doubtful from its own to be “three English miles south of any or nature; in every such case, if the parties have every part of Charles River."

acted with entire good faith, a court of equity Some doubt may arise from this phraseology, will not interpose. For in such cases,' the whether the three English miles are to be equity is deemed equal between the parties; measured from the source of the southern and when it is so, a court of equity will not branches of Charles River, or from the main interfere. 1 Pow. on Con. 200; 1 Madd. Ch. Pr. channel of the river. And it would seem, from 62–64; 1 Story's Eq. 163. the establishment of the Woodward and Saffrey The principles recognized by these authori. Station, and other acts done in reference to ties apply in all their force and conclusiveness this boundary shortly after the date of the to the case under consideration. A greater charter, and when its language was at least as number of authorities might be cited, but it well understood as at present, that the measure cannot be necessary. The principles stated are ment was understood not to be required from founded on reason and the fitness of things, the body of the river. At that early day the and they have been sanctioned by a uniform country was a wilderness, and the land was of course of adjudication. but little value; so that Massachusetts could If these rules are to be respected, and the have felt no very strong interest in establish- mistake alleged in the bill had occurred under ing the line farther south than was authorized precisely the same circumstances between indiby the charter.

viduals, it would seem to be clear that there The bill alleges a mistake in this distance would be no ground for relief. from the river of the Woodward and Saffrey

A controversy exists between individuals reStation by the commissioners of Rhode Island, claims that the line should begin at a certain

specting a commun boundary. One party in both of the agreements respecting the boundary; and this mistake is not denied by trators are appointed, with full powers to set

point, and the other at a different one. Arbi. the plea. But, in the language of the plea, tle and compromise the disputē, who estabthese agreements are now to be considered as lished the point as claimed by one of the having been l'airly made, in good faith, without parties. Some dissatisfaction is subsequently fraud or misrepresentation by the Massa-I manifested by the unsuccessful party; and

seven years after the first reference, a second happen, it is rather a question of policy than of one is made to other persons, who are vested right, whether they shall be corrected. with ample powers to settle and compromise the I am inclined to think with the counsel on controversy, and they do settle it in exact both sides, that the great question in this case conformity to the first award; and this second should not be decided by the rules for the setaward is reported to the principals, who sanc tlement of private rights. tion it. In addition to this, the line or place The high litigant parties, and the nature of of beginning established by the arbitrators is the controversy, give an elevation and dignity the place claimed by the successful party as to the cause which can never belong to differhis line more than seventy-five years before ences between individuals. It may be a simple the second award, and more than twenty years matter to determine where a line shall be run; before the other party had any interest in the but when such determination may draw after boundary. And the conduct of the arbitrators it a change of sovereign power over a district is free from any, imputation of fraud or un- of *country and many thousand citi. (*276 fairness; all having equal and full knowledge zens, the principles involved must be conof the matter in dispute, which was fully and sidered as of the highest magnitude. The ques. fairly discussed and understood, and finally tion is national in its character, and it is it determined.

and proper that it should be decided by those A case under these circumstances between broad and liberal principles which constitute individuals, to say nothing of the lapse of the code of national law. time and acquiescence, since the award, would Vattel, in his treatise (277), says: “When 275*] *not seem to be very strongly recom- sovereigns cannot agree about their pretenmended to the equitable interposition of the sions, and are nevertheless desirous of preservcourt, on the ground that the arbitrators mis- ing or restoring peace, they sometimes submit took a fact: a mistake not induced by the the decision of their disputes to arbitrators, opposite party, or by misrepresentation, but chosen by common agreement. When once the into which the arbitrators of the unsuccessful contending parties have entered into articles party had innocently fallen, having as full a of arbitration, they are bound to abide by the knowledge of the whole merits of the case as sentence of the arbitrators: they have engaged the arbitrators chosen by the other party. to do this, and the faith of treaties should

Relief which should set aside the award, and be religiously observed.” open up the controversy, under such circum And again: "In order to obviate all diffistances, would create a new head of equity. culty, and cut off every pretext of which fraud

The mistake is admitted, because it is not might make a handle, is necessary that the denied by the plea; and this may be said to be arbitration articles should precisely specify the a technical advantage of the plaintiff. For if subject in dispute, the respective and opposite the fact of mistake were to be tested by the pretensions of the parties, the demands of the circumstances of the case, it would be difficult i one and the objections of the other. These conto come to the conclusion that a mistake had stitute the whole of what is submitted to the really occurred. If it were admitted to have decision of the arbitrators, and it is upon these taken place, in the first award, it would require points alone that the parties promise to abide no small degree of credulity to believe that it by their judgment. If, then, their sentence be again occurred in the second award, made seven confined within these precise bounds, the disyears after the first one, and after much dissat. putants must acquiesce in it. They cannot say isfaction had been manifested against the first that it is manifestly unjust, since it is proaward. This dissatisfaction could only have nounced on a question which they have themarisen from the supposed fact that the bounda- selves rendered doubtful by the discordance of ry had been established too far south.

their claims, and which has been referred, as But as the case now considered, the mis- such, to the decision of the arbitrators.

Betake alleged is admitted, but admitted under all fore they can pretend to evade such a sentence, the averments of the plea.

they should prove, by incontestable facts, that If the Woodward and Saffrey Station be as it was the offspring of corruption or flagrant many miles soutli of Charles River as alleged partiality.” in the bill, it would seem to be a more rea And again, in page 178, he says: "Arbitra. sonable supposition that it was agreed to under tion is a very reasonable mode, and one that is a construction of the charter, or on the princi- perfectly conformable to the law of nations, for ples of compromise, than through mistake. the decision of every dispute which does not But the mistake being admitted, still, as be directly interest the safety of the nation. tween individuals, there would be no sufficient Though the claim of justice may be mistaken

ound for the interposition of a court of by the arbitrators, it is still more to be feared equity.

that it will be overpowered in an appeal to And if relief could not be given between in the sword.” The author well observes that the dividuals, can it be decreed under the same Helvetic republic, by a wise adherence to this circumstances between sovereign States. mode of adjusting controversies among themThere are equitable considerations which would selves, and with foreign countries, has secured seem to apply with greater force to contro its liberty, and made itself respectable throughversies between individuals, than to those out Europe. which arise between States. Among States These principles have been established by the there is a higher agency, greater deliberation, common consent of the civilized world. And and a more imposing form of procedure, in the where they are invoked in the settlement of adjustment of differences, than takes place be- disputes between States, and the proceeding is tween private individuals. Between the for characterized by fairness and good faith, it mer, from the nature of the proceedings, mis ought not to be set aside, and, indeed, cannot takes of fact seldom occur; and when they do be; without, in the language of Vattel, proving



by the clearest evidence that the award was mined on and designated any boundary as that the offspring of corruption or flagrant parti- which was intended by the Treaty of 1783." ality. And if the determination of the arbi. This view, by the Secretary, of the binding trators has the sanction of time as well as of effect of the decision if it had been made on the principle, it is believed that history affords no point submitted to the arbiter, is in accordance instance where it has not been considered as * with the principles of national law, [*278 absolutely binding on the parties. The peace and has a direct and most forcible application of nations and the prosperity of mankind re to the case under consideration. quire that compacts thus formed should be held No objection is made by Rhode Island that sacred.

the arbitrators exceeded their powers. No 377') *The pretensions of Massachusetts in such objection can be made. Their powers were favor of the line as established by both arbitra. ample; and their proceedings, both in 1710, and tions, commenced in 1642; and no other juris. in 1718, seem to have been characterized by diction had been, at any time, exercised over great dignity and deliberation. the country north of this line. It was claimed The complainant, it is true, was dissatisfied before Rhode Island had a political existence. with the first decision, establishing Woodward The elements of which it was afterwards com- and Saffrey's Station; and by remonstrances posed were, at the time this right was first as induced the appointment of the second commis. serted, mingled with the parent colony of Mas: sion in 1717, which in the following year con. sachusetts, and with other communities and firmed, in all respects, the first decision. Note nations. And after they became embodied and withstanding these remonstrances against the organized under the charter of 1663, it was first decision, it would seem from the bill that nearly half a century before there seems to until 1749, the complainant believed that have been any dispute respecting this boundary. Woodward and Saffrey's Station was only

Nearly two centuries have elapsed since the three English miles south of Charles River, claim of Massachusetts to this line was set up, and was consequently the true point from and more than a hundred and twenty years which the line should be run. This being the since the controversy was settled by the com- case, as the bill does not state the precise missioners arbitrators chosen by the ground of dissatisfaction at the first report, parties: and, as averred in the plea, specially it cannot well be imagined. Banctioned and confirmed by Rhode Island. Rhode Island, it seems, from time to time,

Is time to have no influence in this case, on by remonstrances, in the form of resolutions the agreements of the parties ? It covers with and otherwise, and by the appointment of comits peaceful mantle stale disputes between in. missioners, signified its dissatisfaction at the dividuals. And so strong is its influence that boundary, as established in 1710 and 1718. fraud, which vitiates all human transactions, Massachusetts, as it was bound in comity to cannot be reached when covered by great lapse do, listened to these expressions by Rhode of time.

Island, and more than once appointed commisHas a treaty ever been set aside on the sioners on the subject. But whether we look ground of mistake? Has it ever been contend to the averments in the plea, or to the stateed that after its ratification by the high con ments in the bill, the defendant never seems to tracting parties, either could look behind the have done anything which could impair the treaty and object to it because the negotiators | force of the agreements. had mistaken a fact? It is believed that such The bill states various facts, such as the

pretension would be new in the history of little value of the land bounding on the disdiplomacy. The treaty must speak for itself, puted line for many years, the sparseness of the and under its provisions must the rights of the population, the want of means, and the interparties be ascertained.

vention of war; as reasons why Rhode Island In the first treaty of limits between this did not bring this controversy before the king country and Great Britain, it is a fact not in council, under the colonial government. now questioned that a mistake of many miles It appears from the exhibits accompanying was made in establishing our northern bound the bill that, in 1740, there being a dispute beary. But this has afforded to Great Britain no tween Massachusetts and Rhode Island, wheth. occasion of remonstrance or complaint.

er the former could exercise its jurisdiction to Our own government, on a recent occasion, the shores of the Narraganset Bay, the King declined an acquiescence in the decision of the of Great Britain appointed commissioners to King of the Netherlands, in relation to this same settle the controversy, who decided against boundary. But, in his letter of July 21st, 1832, Massachusetts. This decision was confirmed on to the representative of Great Britain in this an appeal from the commissioners, by the king country, the Secretary of State says, in re- and council. lation to the resolution of the Senate against So long as the colonial government con• the decision, that it was adopted under the tinued, this mode of redress, so successively in. conviction that the arbiter had not decided the voked by the complainant in the above in. question submitted to him, or had decided it in stance, remained open. The articles of conà manner not authorized by the submission. federation formed by the new government

"It is not,” he adds, "the intention of the made special provision for the settlement of undersigned to enter into an investigation of disputed boundaries between States. And the argument which has led to this conclusion. when these were revoked by the adoption of The decision of the Senate precludes it, and the Constitution, the tribunal at last appealed the object of this communication renders it un to was open, and has ever remained ready to necessary; but it may be proper to add that hear and decide the controversy. no question could have arisen as to the validity Giving full weight to all the allegations in of the decision, had the sovereign arbiter deter- I the bill which go to *excuse the delays ("279


of Rhode Island in asserting its claim, it is, the territory claimed by the plaintiff, for moro still difficult to say that the claim remains un than a century. affected by the unmolested possession of The facts pleaded must be conducive to a Massachusetts, according to the agreements. single point of defense; and the question is, Rhode Island, it is true, is small in territory, are the compacts, the making of the line in and weak in numerical force, but it has always part execution of them, and the taking and stood high in moral power and intellectual en- I holding possession in other part, and complete dowment; and the tribunals which, since the execution of them, combined facts and circum. commencement of the controversy, have been stances, conducing to establish the single point open to hear its complaint, have been tribunals relied on in defense ? Tuat is, that the line of reason, of justice, and of established law. run from Woodward and Saffrey's Station was

The arguments of the counsel for the com- the true boundary, established by, and marked plainant, zealous and able as they were, rested in execution of, the compacts; and that by the mainly on the hardship and injustice of decid-compacts Rhode Island is estopped to deny its ing this controversy on the pleadings as they validity. And I think the circumstances piead. now stand. The mistake is admitted; and ed are so connected as not to vitiate the plea. what is there else in the bill, taken in connec If it is bad, it must therefore be so on its tion with all the facts and circumstances, which merits involving the obligatory force of the can give the case of the complainant a more compacts. That they are prima facie imposing form. No fraud is imputed; the clusive of the boundary, is admitted; but the sealed agreements, now and ever, must speak bill alleges they were made in mistake, and the same language; the effect of time will re- the line run and marked, and possession surmain, and the excuses alleged in the bill for de- rendered to Massachusetts, in mistake of a lay, can scarcely have, under any form of prominent fact: that Rhode Island then bepleading, greater effect than may be given to lieved the station, and the line run from it, them as the case now stands. I speak not of three miles south of Charles River; whereas the volume of evidence which may be thrown subsequent observation and examination had into the case by a change of the pleadings, but ascertained it to be much further south, that is, of the leading and indisputable facts which about seven miles. must, under any form of procedure, have a The Massachusetts charter calls for a line to controlling infuence in the decision. Believing, be drawn east and west, "three miles south of as I do, that in admitting the truth of the plea, the waters of said Charles River, or of any, or Rhode Island has done nothing prejudicial to of every part tliereof;" and the plea, in subher interests, and that in the present attitude stance, avers the charter was construed, and of the case, its substantial merits are before us, the line settled by the compacts, without mis. I feel bound to pronounce a different opinion representation on the part of Massachusetts, from that which has been given by a majority and with full and equal knowledge of all cir. of my brother judges. Taking the facts of the cumstances by both parties. plea, and giving due weight to all the allega The plea having been set down for argutions of the bill, not denied by the plea, I am ment, without an issue, must for the present led to the conclusion that the bar is complete. be taken as true; and the averments taken as In coming to this conclusion, I feel no want of admitted that the parties entered into the comrespect for the State of Rhode Island, which pacts, and established the boundary, with full has become so illustrious in our history by its and equal knowledge of all the circumstances enterprise, its intelligence, and its patriotism. of law and fact involved in the controversy, as

it then existed and now exists. And in the

face of the compacts thus made, can Rhode Is. Mr. Justice Catron.

land be heard to allege the existence of a misThe facts and pleadings have been so fully take in the boundary established by them, and stated by my brethren, as to require from me marked by the mutual commissioners, and as only a brief notice of the conclusions my mind the joint act of both parties ? Under the has come to on the points in controversy. circumstances, to open the controversy and let

The defense, in the form of an incongruous in proof of a mistake, at this day, to over. plea, must set up matter in bar, which, if true, throw a solemn treaty made between two inde. renders immaterial every other fact alleged in pendent governments, is deemed by me inad. the bill; be these as they may, the defense missible, not to say dangerous. And I think must be conclusive of the controversy, and the matters pleaded (if true) a good defense. every necessary averment to sustain the matter if this compromise and solemn establishment pleaded in the bar must also be made in an of a boundary, made a century ago, can be im. answer covering the plea, which cannot be per- peached on the ground of a mistake so palpable mitted to stand unsupported by an answer. and easy of detection, cannot every other made This is the familiar and settled practice of the by the States brought before this court, on a High Court of Chancery in England, and adopt. similar assumption, usually much better ed by rule in the courts of the United States. founded; especially where degrees of latitude

In form, it is believed, the plea and answer *are called for as boundaries? If the (* 281 in this cause are accurate in a high degree, in parties, "with full and equal knowledge of all regard to the matter pleaded, and the aver. circumstances," compromised and settled 280*]ments necessary to give it effect, in the doubtful construction of the Massachusetts sense it is relied on as a bar, unless the de. charter, and in which they were engaged near. fense set up is double.

ly ten years; why should this court go further It is insisted the plea is multifarious, because into the matter, at the hazard of encouraging it relies on two defenses: first, the compacts, litigation in so many other quarters ? and second, the possession and occupation of I will for the present refrain from entering


of distinction between such private agreement, IStates for the District of Maryland.


into the inquiry, how far such a mistake of character, the creditor would be entitled to consid. law, in construing a private instrument, could

er it as assets in his hands, and to charge him in

the same character in which he received it. be enquired into by a court of chancery in a suit debtor, that is to say, the party wbo purchased between man and man; nor what help the mis- from the factor without any knowledge of the true take of law (if any exists) could derive from

owner, and who paid the money to the adminis

trator under the belief that the goods belonged to the facts apparent by the bill, unless the state.

the factor, 18 unquestionably discharged by this ment of the proposition should suggest the payment; yet he cannot be discharged unless be

pays it to one lawfully authorized to receive it, answer. Nor will I attempt to draw the marked line except only in his representative character.

N error to the Circuit Court of the United and a public treaty, by State with State, in regard to the difficulty of going into matters of In the Circuit Court of Maryland, John H. mistake, usually not predicable of a treaty.

Duffy, the defendant in error, instituted a suit

against the administrators of Albert P. De On consideration of the plea filed in this case Valengin, for the recovery of a sum of money by the defendant, and of the arguments of which he claimed to belong to him, being a por. counsel thereupon had, as well in support of as tion of the indemnity paid by the government against the said plea, it is now here ordered by of Brazil, for the capture and loss of the brig this court, that the said plea be, and the same President Adams, by a Brazilian cruiser, in is hereby overruled; and it is further now here 1828. ordered by this court, that the defendant an- John H. Duffy, a citizen of the United States, Awer the bill of complaint, as amended, on or domiciled at Buenos Ayres, in 1828, shipped a before the first day of the next term.

quantity of hides, and other articles of merchandise, in 1828, on board the brig President Adams, commanded and part owned by Albert

P. De Valengin, a citizen of Baltimore, for Gib282'] *ALBERT P. DE VALENGIN'S AD-*raltar. The government of Brazil and (*283 MINISTRATORS, Plaintiffs in Error,

that of Buenos Ayres were then at war.

For the better security of the property from JOHN H. DUFFY, Defendant in Error.

Brazilian capture, the property was shipped in

the name of De Valengin, and soon after she Belligerent property covered as neutral--prop- sailed she was captured by an armed vessel of

erty received by administrator in his repre. Brazil, and carried into Monte Video. There, sentative character; how recovered by party both vessel and cargo were totally lost. entitled.

Under an agreement between John H. Duffy

and Captain De Valengin, a claim for the car. It has been frequently held that the device of go as well as the vessel was made by him on covering property as neutral, when in truth it was belligerent, is not contrary to the laws of war or

the government of Brazil, for indemnity. The of nations. Contracts made with underwriters in ownership of John H. Duffy was concealed in relation to property thus covered, have always this application, as his property was liable to where the true character of the property, and the capture by the cruisers of Brazil; he being dommeans taken to protect it from capture, have been iciled at Buenos Ayres. Captain De Valengin fairly represented to the insurers. The same doc. died before anything was recovered from the trine has always been held where false papers have been used to cover the property, provided the un government of Brazil for the President Adams derwriter knew, or was bound to know, that such and cargo; and a certain James Neale, who had stratagems were always resorted to by the persons become his administrator, under letters of ad. engaged in that trade. If such means may be used ministration granted in Maryland, prosecuted to prevent capture, there can be no good reason for condemning with more severity, the continua- the claim as the representative of De Valengin, tion of the same disguise after capture, in order to and was, at length, paid the indemnity in Bal. prevent the condemnation of the property, or to timore, by the aid of Mr. James Birkhead, of procure compensation for it, when it has been cost Rio de Janeiro, who remitted it to him from nation would never enforce contracts of that de that place. The proceeds of the property rescription, but they have always been regarded as mitted by Mr. Birkliead were returned in an inlawful in the courts of a neutral country.

Whatever property or money is lawfulig recov. yentory filed by Mr. Neale, as administrator, ered by the executor or administrator, after the in the Orphan's Court, at Baltimore, as the death of his testator or intestate, in virtue of his estate of DeValengin. representative character, he holds as assets of the estate ; and be is liable therefor in such representa

A suit for the recovery of the amount tive character, to the party who has a good title claimed by John H. Duffy, was instituted in the thereto. The want of knowledge, or the possession Circuit Court of the United States against of knowledge on the part of the administrator, as James Neale, as the administrator of De Valen. money thus received, cannot alter the rights of the gin; and he having died before the trial of the party to whom it ultimately belongs.

cause, and the plaintiff in error having taken The owner of property or of money received by out letters of administration, de bonis non, to in his personal character, and charge bim, de bonis the estate of De Valengin, they were summoned, propriis, with the amount thus received. He may and they appeared and took defense in the acdo this, or proceed against him as executor or ad- tion. ministrator at his election. But whenever an executor or administrator, in his representative char

In the declaration in the action, the only acter, lawfully receives money or property, he may count applicable to the controversy, between be compelled to respond to the party entitled, in the parties to the suit was that for money that character; and shall not be permitted to throw it off after he has received the money, in or

had and received by James Neale, the adminis. der to defeat the plaintiff's action.

trator of De Valengin, for the use of the plain. In the case of a factor who sells the goods of his tiff. On the issues of non assumpsit and plene principal in his own name, upon a credit, and dies administravit, the jury found for the plaintifl before the money 18 received, if it is afterwards paid to the administrator in his representative

on the first, and for the defendants on the sec


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