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founded in admitted mistake, is binding, why Lord Manners said that “the plaintiff acted
not a treaty founded in fraud! If fraud or under an evident mistake. The defendant can-
mistake will not vitiate a treaty between not be permitted to hold an estate which mani.
States, will it vitiate any other contract ? festly belongs to the plaintiff; and which the
Without entering into this subject, we merely defendant has obtained either by the mistake
express one dissent to the whole doctrine. Our or misrepresentation of the agent.”
main answer to it is, that in 1710, and 1718, We shall dismiss this part of the case, and
Massachusetts and Rhode Island were not sov: very briefly consider the question whether
ereign and independent States, but colonial length of time affords any defense to Massa-
governments, with powers of an extremely chusetts. We have various answers to the
limited character. They were trustees of legis- argument, from time. In the first place, time is
lative powers, under å grant from another no objection to relief, where the mistake is ad.
nation, made for the benefit of the people. mitted; if the case arises between the original

No agreement in relation to their jurisdic- parties to the contract; and if the plaintiff has
tion, even though made fairly and understand- not misled the defendant, by concealing the
ingly, could bind the crown until ratified by mistake an undue time, after it was discovered.
the crown. How, then, could an agreement In the present case, it is admitted that Rhode
made under an admitted mistake be allowed a Island disclosed the mistake as soon as it
more binding efficacy than an agreement made was discovered. It comes within the principle
understandingly! Besides, it is expressly of Honor v. Honor, 1 P. Williams, *123; (*260
averred in the bill that neither of these agree the mistake "being apparent on the face of the
ments were even ratified by the crown, and the papers, length of time is immaterial.”
demurrer admits that fact.

In the second place, length of time, though We have not merely the admission of Massa- a bar in some cases to a claim for property, chusetts that these agreements were founded does not affect a claim for jurisdiction. in mistake, but the mistake is apparent on These are questions, however, more proper the face of the agreements themselves. The to be discussed when the general merits of the agreement of 1810 states, expressly, that they case come before the court upon a general de. were to begin the line from the Woodward and nial of the plaintiff's bill. The principal ques. Saffrey station, "being three English miles tion upon these pleadings is, whether length of distant from the southernmost part of Charles time can be taken advantage of upon a demur. River, agreeable to the letters patent." There rer. As this is a mere question of authority, was never any dispute between the parties but we shall content ourselves with a reference to that the line was to be three miles south of the such cases as bear most strongly upon the river, and no more. That was the agreed basis point. of the contract. The only dispute was, what Both in law and in equity, time has a twocourse that line should run-Rhode Island fold operation; often confounded by unskillful contending for a due west course, and Massa- persons; but possessing, in reality, characters chusetts for a course south of west.

wholly distinct, and wholly unlike each other. The question therefore resolves itself into In many cases it operates as a bar to the this: can

an agreement founded in an ad plaintiff's remedy. În class of cases more mitted mistake,

mistake apparent numerous it operates as a witness in favor of 259*) *upon the face of the instrument, be the defendant. In this last mode of its operasupported either in law or equity! For a much tion it has nothing to do with the remedy, but stronger reason, can such an agreement be- it is applied to the merits of the plaintiff's tween parties, having no power to contract in claim. relation to the subject matter, be supported ? In its first mode of operation it is called a

An omission in an agreement, by mistake, statute of limitations; and unless the case is stands on the same ground as an omission by embraced by certain enumerated exceptions, fraud. Ramsbottom v. Gosden, 1 Ves. & Beam. such as infancy, coverture, and other disabili168; 3 Atk. 382; 6 Ves. 334, note c.

ties, which must be specially stated in answer "The general rule is, that an act done, or to the special plea of the defendant, it is an contract made under a mistake, or ignorance unyielding and peremptory bar to the plainof a material fact, is voidable and relievable in tiff's action. Still, the demand exists for cerequity.". Story's Equity Jurisprudence, 155; tain purposes, although the remedy is de9 Ves. Jun. 275; Bingham v. Bingham, 1 Ves. stroyed. It still would form a sufficient conSen. 126; Gee v. Spencer, 1 Vern. 32.

sideration for a new promise. Cocking v. Pratt, 1 Ves. Sen. 400, is a strong But, in its second mode of operation, it is case, resembling the present in many of its not necessary to plead the lapse of time relied features. Honor v. Honor, 1 P. Williams, 123, upon. It is introduced as a witness in the is also applicable to the present case. Articles, cause before the jury; and, like all other witand a settlement in pursuance thereof, were nesses, its testimony may be contradicted or both made before marriage, but the settlement qualified in a thousand ways, because it swears varied from the uses of the articles. Decreed to matters of fact alone. Thus, in cases in to set the settlement aside. Chancellor: "It which twenty years operate as presumptive is a plain mistake in varying the settlement evidence of a grant, the opposite party may from the articles, and this appearing upon the disprove the existence of the grant, or remove face of the papers, and the plain reason of the the presumption by any means in his power, thing, length of time is immaterial.” In the and the jury are to judge of the weight of concase before the court, the mistake is admitted. ficting testimony. It also appears upon the face of the agree But a plea of the statute of limitations, if ments. The case of Leonard v. Leonard, 2 Ball admitted by the plaintiff, that is, if he admits & Beatty's Reports, was a case of compromise. I that the time has elapsed, and that *his (* 261







case does not come within one of the specified, no right to avail himself by demurrer exceptions, is matter of mere law to be decid- of inference of fact upon

matter ed by the court. A statute of limitations pre- upon which a jury in court of law scribes a definite time, six years, or twenty would collect matter of fact to decide their years, beyond which no action can be brought. verdict, or a court would proceed in the same It operates alike in all cases, and if the lapse manner in equity. What limitation of time of time is admitted, is fatal to the plaintiff's will bar a suit where there is no positive limi

No circumstances can ward off its un- tation, or under what circumstances the lapse erring blow. But when time operates as evi- of time ought to have that effect, must depend dence addressed to a jury, the plaintiff may upon the facts of the particular case, and the safely admit the lapse of twenty, thirty, or conclusion must be an inference of fact, and fifty years, and destroy its effect in a thousand not an inference of law, and therefore cannot different modes.

be made on demurrer. But where the defense In courts of law, a statute of limitations is not a presumption, from long acquiescence, must be specially pleaded. Even if it appears but a positive limitation of time, which the upon the face of the declaration that more than court, by analogy to the statute of limitation the prescribed time has elapsed, still the de adopts, it may clearly be taken advantage of fendant must present it anew in a special plea. by demurrer.But in those cases in which courts of equity In the case of Hovenden v, Lord Annesly, 2 have concurrent jurisdiction with courts of law, Schoale & Lefroy, 629, it was decided, that in and in which a statute of limitations applies— 1 cases of a positive limitation of time as a bar if it appear upon the face of the bill that the to the remedy, a demurrer to the bill would be prescribed time has elapsed, and the disabili sustained.

That case was decided by Lord ties mentioned in the statute are not stated in Redesdale in 1806. In the edition of Lord the bill in avoidance of the bar, the defend- Redesdale's Treatise upon Equity Pleading, by ant may demur to the bill. This difference in Jeremy (the edition of 1836, revised by Redesthe mode of pleading the statute in the two dale himself, page 212), the distinction taken courts is simply this, that in a court of law in the above note and opinion of Thurlow is the statute must be pleaded by the defendant, maintained. and the disabilities, if any, introduced in the Mr. Justice Story, in his very able Treatise plaintiff's replication. But in a court of equity, upon Equity Pleading, page 378, states the if the lapse of time is apparent on the face of doctrine with great clearless. “The same the bill, the disabilities in avoidance must also principle,” he says, "will apply to a bill which be stated, otherwise the defendant may de- states a case within the statute of (*263 mur to the whole bill.

limitations at law, and upon which courts of In the case now under consideration it is equity follow the analogy of the law, for under not pretended that time operates as a bar. If such circumstances, courts of equity hold that the case had been on the law side of the court the objection may be taken as a defense by dethere is no statute of limitations that could be murrer." pleaded in bar to the remedy. There is no pro In one of the latest treatises upon Chancery vision in any statute in England, or in this Practice, by Daniels, published in 1838, London country, applicable to the subject matter of edition (pages 43 and 44), all the decisions this suit, jurisdiction, nor to the parties, sov. upon this subject are cited, and they show conereign States. Time, therefore, can only como clusively that a demurrer can be sustained in to the aid of the defendant as a witness to cases analogous to the statute of limitations. prove possession on the part of the defendant, But he says: and acquiescence on the part of the plaintiff. "It is to be remarked here that all the above Like all other witnesses, his testimony must cases were decided upon the ground of their be offered to the jury upon an issue of fact, and coming within the statute of limitations, or not to the court upon an issue of law.

the rules of the court which have been adopted In the case of Deloraine v. Brown, 3 Brown's in analogy to the statute, and that therefore Ch. Cases, 646, London edition of 1819, by Eden, there was a positive limitation of time upon 262*) is a note of Lord Thurlow's opinion, which the court could proceed. Where, how. preserved by Redesdale, which places this ques. ever, there is no such positive limitation, the tion in its true light.

question whether the court will interfere or “The party who demurs," said his lordship, not, depends upon whether, from the facts of "admits everything that is well pleaded, in the case, the court will infer acquiescence, or manner and form as pleaded; and à demurrer confirmation, or release. Such inference is an ought, therefore, in a court of law, to bring inference of fact and not of law, and cannot be before the court a question of mere law; and raised on demurrer." He cites Cuthbert in a court of equity a question of law or equity Creasy, Madd. & Geldart's Rep. 189, as a merely. The demurrer, therefore, must be cent decision of the English Chancery upon this taken to admit the whole case of fraud made very point. by the bill, and the argument to support it Upon the mere technical law of pleading, must be, not that a positive limitation of time therefore, we feel great confidence that no adhas barred the suit, for that would be a pure vantage of time can be taken in the present question of law, but that from long acqui- case by demurrer. escence, it should be presumed that the fraud But, besides the mere technical objection, charged did not exist, or that it should be in there are reasons lying close to the merits of tended that the plaintiff had confirmed the the case which show conclusively that extreme transaction. This must be an inference of fact, injustice would be done to Rhode Island to and not an inference of law, and the demurrer allow the lapse of time to be taken advantage must be overruled, because the defendant has of under a demurrer. We have stated in our



bill that Massachusetts took possession of the well and others; by which the soil and juristerritory in dispute in 1719, and has continued diction of the territory, now belonging to the in possession ever since. But we have also stated Commonwealth of Massachusetts, was granted various matters in avoidance of this possession. to a southern boundary, to run three miles

In page 43 of the printed case, it is stated south of Charles River. In 1663, the province "that the said province of Massachusetts, on of Rhode Island was granted by King Charles or about the 14th of May, 1719, wrongfully II., and the grant was limited to, and by the took possession of all that tract, etc.” “And southern boundary of the Colony of Massachu. has since continued, wrongfully, to exercise setts. jurisdiction over the same.'

As to the exact location of this boundary, The bill then proceeds to state that the line difficulties arose, and commissioners were apestablished by the agreement of 1719 was nev: pointed by Rhode Island and Massachusetts; 264*] er confirmed by Rhode Lsland, *'but and in 1719 agreements were made by the comthat, on the contrary, the claim of said colony missioners of both parties. uniformly was, that the true dividing line on What is the ground on which these agree. the north part of said colony was a line ments are to be set aside? It is said to be that drawn three English miles, and no more, south they were founded in mistake; and that by of the south part of said Charles River, or of them Massachusetts has gained and Rhode any or every part thereof, as defined and Island has lost four miles of territory. This is granted by the letters patent aforesaid, and the whole ground. No fraud is charged, none that the claim of Massachusetts to any other is alleged. No assertion is made in the bill or different line was never acquiesced in, or that advantage was taken by Massachusetts in consented to by said colony of Rhode Island; the adjustment; or that the commissioners of and that the said claim of the said colony was Rhode Island had not knowledge of the subpublicly and frequently urged and maintained ject confided to them; and if they had been by said colony, and by the freemen and inhab- ignorant, it would not avail. They had full itants thereof."

right and full opportunity to make all necesHere are clear and distinct allegations of sary examinations. facts. The demurrer admits the truth of It is said that, under the mistake, the line them. It admits that Rhode Island never ac was placed seven miles from Charles River, inquiesced in the possession or claim of Massa stead of three miles. Rhode Island discovered chusetts, but always maintained her claim for the mistake in 1749, and that the proceedings the charter line as now contended for.

set forth in the bill show that Rhode Island This demurrer admits the facts of non-ac has not acquiesced in the line then established; quiescence. It admits the truth of all evidence the object of this application to the court is to which the plaintiff by any possibility can offer, obtain relief from the mistake discovered in 1749. under that general allegation. The very ques The question is, whether this court can intion as to time in this case is, has Rhode Island terfere after so long a period; whether time acquiesced in the possession of Massachusetts ? alone will not prevent the disturbance of an In her bill she says she has not; and she has a adjustment of such long standing, and in refright to offer any and all evidence which tends | erence to which no adverse movement has been to prove that fact. But the demurrer excludes made for nearly one hundred years; and as that evidence by admitting the fact itself. It to which nothing has been done by Rhode will not answer to admit the fact in pleading, *Island, other than expressions of dis- (*266 and deny it in the argument. It must be de satisfaction. If it were a recent transaction, nied in pleading, so that Rhode Island may of no adjudged cases are known to sustain the apfer her evidence, or it cannot be denied at all. plication; and no principles of public law will Can it, then, be gravely contended by the learn- sanction the interference of the court. If it ed counsel of the very lofty and imposing State was an affair of yesterday, the court would of Massachusetts, that agreements entered into not act upon it. under a clear and admitted mistake, caused by Several things were to be ascertained by the her own misrepresentations, can stand for one commissioners. The course of Charles River moment in any court, in any civilized nation and its branches, and then a line running three in the world I Can it be contended that any miles south of the river. This was the establength of possession under such agreements, ad- | lished charter boundary of Massachusetts, to mitted to have been wrongfully taken in the which the northern line of Rhode Island was first instance, wrongfully continued, and never limited by her charter, granted many years acquiesced in by Rhode Island, can confer up after that of Massachusetts. After all the inon Massachusetts any title? Our difficulty has vestigation the commissioners thought necessabeen to find, in the whole range of the case, a ry, they adopted the Woodward and Saffrey spot of debatable ground.

station as the point which was to determine Mr. Webster, in support of the demurrer: the boundary line; a point which had been

The bill of Rhode Island asks the court to fixed twenty years before the existence of 265*] disturb a boundary *between that State Rhode Island. No misrepresentations and Massachusetts, which has been settled for charged to the commissioners of Massachumore than two hundred years. This is a ques- setts; no interference with the inquiries which tion of great magnitude; and the matter for the Rhode Island commissioners might be dethe decision of the court is, whether a case has sirous of making; and the determination of the been made out in the bill on which Massachu. question was made after every opportunity for setts may resist the claim thus presented. examination. If a mistake was made — which

The charter of Massachusetts originated in a is not admitted—can relief from it be now obgrant by the council established at Plymouth, tained, where do fraud is imputed ? on the 19th of March, 1628, to Sir Henry Rose The cases in the books sustain the views of

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the counsel for the State of Massachusetts. If There are two modes in which lapse of time better knowledge exist in one party to an may be taken advantage of in courts of equity. agreement than in the other, the agreement The first, where the law *expressly ap- [* 268 will not be disturbed. 9 Ves. 273. If parties plies to the case. A court of equity, then, are dealing, and both have equal opportunities adopts the same rule. 2 Jacobs & Walker, of knowledge, the court will not interfere. In 191; 2 Story's Equity Jurisprudence, 735. Secthis case there were no confidential relations, ond, wherever there has been laches, the stat. between the parties. They were dealing ad- ute of limitations will be applied by courts of versely. I Ves. Jun. 408.

chancery. Story, 735, 736. In this case, both If men have agreed to a boundary between rules apply. There has been most abundant them, and it may be afterwards disturbed on laches. Why did not Rhode Island apply to the the ground of mistake, the consequences would Privy Council—to the Continental Congress—to be disastrous and fatal to the tranquil ownerthis court, established in 1789? This is acqui. ship of estates. Boundaries must be settled escence; no matter what the complainants say, for the assurance of cultivation. The husband it is acquiescence. Such a course of acquies. man would refuse to improve his land, unless cence cures fraud, if any fraud had existed. 2 he was at rest on the subject of the lines and Story's Equity, 739, note; cited, also, Story's corners of his property. If these principles Equity Pleadings, 379; 9 Peters, 405; Bourn v. regulate the concerns of individuals, how much Chiles, 10 Peters, 177; 1 Story's Equity, 139, 189, more necessary are they in the relations be: 502; 2 Sch. & Lef. 636. The complainants astween oterminous States. This is supported sert that lapse of time is only evidence against by the writers on international law. Vattel their title, but the demurrer of the defendant says, the agreements between nations, however takes away the operation of the evidence. mistaken, are to stand. If this is not so, how This cannot be, or there would be no demurrer 267*] shall such *disputes be at any time ad-for lapse of time on the face of the bill. But justed. The books, and all history, are full of courts of equity adopt a higher principle. They these principles.

will not assist a plaintiff to maintain a stale Mr. Webster referred to the controversy be claim. They will save a party from the trouble tween William Penn and Lord Baltimore, in of resisting such demands. It is manifest, support of these principles; the settlement of then, that if there was mistake, if there was the disputes as to boundaries between the fraud, no relief will be granted after such a States of Kentucky and Tennessee, and to other lapse of time. There is another and an im. cases. Will any one say these adjustments, and portant point for the consideration of the court the lines established under them, can now be in this case. disturbed on the ground of mistake? It is said The constitution gives the Supreme Court a the bill of Rhode Island charges the mistake, right to decide controversies between the States and the demurrer admits it; and, therefore, the of the Union. This is a case in which two whole case of the complainants is admitted. States having agreed to an actual and defined The question to be decided by the court is not boundary, nearly one hundred years ago, come whether the mistake is admitted, but what is before the court, and the court is asked to disthe effect of the mistake. The mistake is im. turb this boundary established before the material, and this is submitted to the court. If States came into the confederacy—to change the mistake could not entitle the complainant the limits of the territory each possessed when to relief, its admission would not do so. she entered into it can this court interfere in

If there had been a fraud; if the commis- j such a matter! Each of the States took her sioners of Rhode Island had been deceived, there position in the Union holding the territory now is no ground for relief. It is too late, at this held, with the actual boundaries to their terri. distant period, to inquire into such a transaction. tories well known and long established. Inde.

This brings the court to the inquiry, what is pendence was declared by the States with these the effect of lapse time? But it is said the limits. The Treaty of Peace in 1783 acknowl. demurrer will not permit the party to avail edged the States as they then existed. No dishimself of lapse of time. In order to do this, turbance can be made of the territories of each an answer must be put in. But the lapse of State after this mutual recognition, and after time is on the face of the complainant's bills; this acknowledgment by the nation, to which, and when this is so, it will avail the party de- before the Declaration of Independence and the murring.

Treaty of Peace, they were subject. No This is a question of pleading. The court | *tribunal which has its existence under (* 2 6 9 has adopted the rules and principles of the a constitution of government formed after Court of Chancery in England; and they will these relations existed, has power to interfere regard the decisions of the English courts of between them in such a question. chancery on this question. It has been settled in these courts for half a century. The case of Mr. Chief Justice Taney delivered the opin. Foster v. Hodgson, 19 Ves. 180-184 determines ion of the court: this point: cited, also, 1 Vesey & Beames, 535, The attention of the court has on several oc536; 7 Paige, 195; 6 Paige, 590; 2 Shoales & casions been drawn to this case by the impor. Lefroy, 630; Story's Equity Pleading, 378, 389. tant questions which have arisen in different

The defendant, the State of Massachusetts, stages of the proceedings. At the last term, it is right, therefore, in the form of pleading; came before us upon a plea in bar to the com. and lapse of time, possession, and acquiescence, plainant's bill, which upon the motion of the are a complete bar against fraud. The bill complainant had been set down for argument. states that the mistake was discovered in 1749, This part of the case is reported in 14 Peters, and no proceedings took place in this court un 210, where the allegations contained in the bill til 1835-eighty-six years afterwards!

are so fully set out that it is unnecessary to re

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peat them here. The court having overruled 5th. The bill further states that the mistake the plea for the reasons stated in the report of was not discovered by Rhode Island until 1740, the case, the defendant has since demurred; when she soon afterwards took measures to and in this state of the pleadings the question correct it; that she never acquiesced in the posis directly presented, whether the case stated session of Massachusetts, after the mistake was by Rhode Island in her bill, admitting it to be discovered, but has ever since continually retrue as there stated, entitles her to relief. sisted it; and never admitted any line as the

The character of the case, and of the parties, true boundary between them, but the one called has made it the duty of the court to examine for by the charters. Various proceedings are very carefully the different questions which set out, and facts stated in the bill, to show from time to time have arisen in these proceed that the complainant never acquiesced; and to ings. And if those which are brought up by account for the delay in prosecuting her claim. the demurrer were new to the court, or if the Whether they are sufficient or not for that purjudgment now to be pronounced would seri. pose, is not now in question. They are cer. ously influence the ultimate decision, we should tainly consistent with the averment, and tend deem it proper to hold the subject under ad. to support it. visement until the next term, for the purpose of *The case, then, as made by the bill, (*271 giving to it a more deliberate examination. and to be now taken as true, is substantially

But although the questions now before the this: The charter boundary between these col. court did not arise upon the plea, and of course onies was three miles south of Charles River; were not then decided, yet much of the argu- and the parties intending to mark a line in ment on that occasion turned upon principles that place, marked it by mistake four miles which are involved in the case as it now stands. i further south, encroaching so much on the terri. The facts stated in the bill were brought before tory of Rhode Island; and the complainant was us, and the grounds upon which the complain-led into this mistake by confiding in the repreant claimed relief were necessarily discussed in sentations of the commissioners of the defendthe argument at the bar, and the attention of ant. And as soon as the error was discovered, the court strongly drawn to the subject. The she made claim to the true line; and has ever whole case as presented by the bill and de- since contended for it. murrer has been again fully and ably argued, We speak of the case as it appears upon the at the present term; and as the court has made pleadings. It may prove to be a very different up its opinion, and are satisfied that the delay one, hereafter, when the evidence on both sides of our judgment to the next term would not is produced. But taking it as it now stands, if enable us to obtain more or better light upon it were a dispute between two individuals in rethe subject, it would be useless to postpone the lation to one of the ordinary subjects of private decision.

contract, and there had been no laches to de. 270*] *The demurrer admits the truth of prive the party of his title to relief, would a the facts alleged in the bill, and it is sufficient court of equity compel him to abide by a confor the purposes of this opinion to state in a few tract entered into under such circumstances ? words the material allegations contained in it. It is one of the most familiar duties of the

1st. It alleges that the true boundary line be- Chancery Court to relieve against mistake, estween Massachusetts and Rhode Island, by vir- pecially when it has been produced by the tue of their charters from the English crown, is representations of the adverse party. In this a line run east and west three miles south of case, the fact mistaken was the very foundaCharles River, or any or every part thereof; tion of the agreement. There was no intention and sets out the charters which support, in this on either side to transfer territory, nor any respect, the averments in the bill.

consideration given by the one to the other to 2d. That Massachusetts holds possession to a obtain it. Nor was there any dispute arising line seven miles south of Charles River, which out of conflicting grants of the crown, or upon does not run east and west, but runs south of a the construction of their charters, which they west course; and that the territory between proposed to settle by compromise. Each party this line and the true one above mentioned be agreed that the boundary was three miles south longs to Rhode Island, and that the defendant of Charles River; and the only object was to unjustly withholds it from her.


ascertain and mark that point; and upon the 3d. That Massachusetts obtained possession case, as it comes before us, the complainant of this territory under certain agreements and avers, and the defendant admits that the place proceedings of commissioners appointed by the marked was seven miles south of the river, intwo colonies, which are set out at large in the stead of three, and was fixed on by mistake; bill; and the complainant avers that the com and that the commissioners of Rhode Island missioners on the part of Rhode Island agreed were led into the error by confiding in the repreto this line under the mistaken belief that it sentations of the Massachusetts commissioners. was only three miles south of Charles River; Now, if this mistake had been discovered a and that they were led into this mistake by the few days after the agreements were made, and representations made to them by the commis. Rhode Island had immediately gone before a sioners on the part of Massachusetts, upon tribunal having competent jurisdiction, upon whose statement they relied.

4th. That this agreement of the commis- principles of equity, to relieve against a missioners was never ratified by either of the cold take committed by such parties can there be onies; and the bill set out the various proceed any doubt that the agreement would have ings of the commissioners and legislatures of been set aside, and Rhode Island restored to the two colonies, which, if not sufficient to es

the true charter line! We think not. Agreetablish the correctness of the averment, are yet ments thus obtained, *cannot deprive (*272 not incompatible with its

the complainant of territory which belonged to



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