between them, the Chief Justice elaborates on the disadvantages accruing to Rhode Island, if it sets the plea down for argument or if it answers it. Thus : techni Island. If we proceed to decide the case upon the plea, we must assume, without any Strict proof on either side, that the facts above mentioned are correctly stated in the plea cality and incorrectly set forth in the bill. This is the rule of the Chancery law. Yet it would be is evident, that by deciding the case upon such an issue, we should shut out the unjust to very gist of the complainant's case; and exclude the facts upon which her whole Rhode equity is founded, if she has any. Because, if we assume, as we must do in this state of the pleading, that the agreements, which are admitted on both sides to have been made, were made by persons having competent authority to make them, and who had full knowledge of all the circumstances; and that Massachusetts had quietly and peaceably enjoyed the territory, under the agreement, for more than a century; every one, we presume, would admit that the claim of Rhode Island to unsettle this boundary, at this late date, was utterly groundless and untenable. Yet this is the attitude in which Rhode Island must stand, upon the issue framed by the plea ; the allegations in her bill, above mentioned, must be rejected as erroneous, without giving her an opportunity of proving them; and her claim of this territory must be decided, upon a statement of facts, the truth of which she utterly denies, and which she offers to prove are entirely erroneous, if the Court will consent to hear her testimony. We do not mean to say that the facts stated in the bill, if proved to be true. will entitle the complainant to recovery. That point is not before us in the present state of the pleadings; and we give no opinion on the merits of this controversy. But certainly it would be unjust to the complainant not to give her an opportunity of being heard, according to the real state of the case between the parties; and to shut out from consideration the very facts upon which she relies to maintain her suit. If the complainant takes issue on the facts stated in the plea, her condition would be equally unfavorable. For there are many facts upon which the complainant evidently relies as material, which are altogether unnoticed in the plea, and upon which, therefore, no issue will be framed. And if the complainant were to adopt this alternative, she would admit, according to the Chancery rules of pleading, that all of the allegations, contained in her bill were immaterial and of no importance, except those noticed in the plea; and that if the facts averred in the plea turned out to be true, the complainant had no right to recover, whatever equities might be found in the other allegations in the bill; and whatever proofs she might be ready to adduce in support of these allegations. In either alternative, therefore, it would be manifestly unjust to the complainant, to decide this controversy upon the plea; and if it was deemed good in form and substance, so far as the case is already presented to the Court, we still should not finally decide the controversy on this plea, but save the benefit of it to the hearing, and give the complainant as well as the defendant, the opportunity of bringing forth all the merits of his case.1 The second objection to the plea is, as already stated, that instead of confining itself, as required by the rules of technical pleading in such matters, to a single defence, it puts in issue two defences, which would be proper in an answer but improper in a plea. In this short cut, the complainant has a right to have the defendant point out the one issue and to rely upon it as decisive of the case, if he prefer to plead rather than to answer. On this phase of the subject, although it has but an historical interest, the decision of the Court will be considered as showing its solicitude for the rights of the states. And it is only fair to say, in passing, that a better example of this could not possibly be chosen from the annals of the Supreme Court than this very case and this very opinion by Chief Justice Taney, who opposed the assumption 1 State of Rhode Island v. State of Massachusetts (14 Peters, 210, 258-9). of jurisdiction in this case, and who, it will be seen, repeated his views in his final decision. The two defences militating against the plea are, first, that it sets up an accord and compromise of the then colonies in the proceedings, running from 1709 to 1719; second, that it sets up continuous possession of the boundary as claimed not merely from the accord and compromise, but also from a date anterior to the charter of Rhode Island to the day of the hearing. It is evident that these defences are inconsistent, because, if the compromise is good, possession is immaterial, and if Massachusetts has title by prescription, the necessity of the compromise is eliminated. Either is sufficient, but neither can be regarded as surplusage, as each is separate and distinct and goes to a different phase of the case. Of this phase of the subject Mr. Chief Justice Taney says: The defence set up by this plea is twofold: 1. That there was an accord and compromise of a disputed right. 2. Prescription, or an unmolested possession from the time of the agreement, that is, of more than one hundred years. These two defences are entirely distinct, and depend upon different principles. If what the defendant alleges be true, then the agreements themselves conclude the controversy. For if, as the plea avers, there was a dispute between these two colonies, in respect of the boundary between them, and that dispute was settled by persons duly authorized to bind the respective parties; and if, as stated by the plea, the agreement of October 1718, to run the line from the stake set up by Woodward and Saffrey, was accepted, ratified and confirmed by Rhode Island; and if the running of the line afterwards in 1719, pursuant to such agreement, was also approved by Rhode Island; then there can no longer be any controversy between them. They must, on both sides, be bound by the accord and compromise of those whom they had authorized to bind them, and whose conduct they afterwards approved; provided the settlement was made, as the plea alleges, with a full and equal knowledge of all the circumstances. The various facts stated by the defendant, in relation to these agreements, contribute to support them, and conduce to establish this point of his defence. And, assuming that the plea and answer are true in all these statements, then an accord and compromise is established, which was obligatory upon the parties from the moment it was finally ratified. And taking everything averred by the defendant on this point of the defence to be correct, Rhode Island would have been as effectually barred as she is at the present moment, if she had commenced this controversy within a month after the accord was made. The lapse of time is not at all necessary to give validity to such a settlement or to support the defence founded upon it. It is a matter entirely distinct from it; and if it had any operation in the case, it is another defence, and one of a different character. It is not an accord and compromise of a doubtful right-it is prescription.1 So much for the first phase of this question. With regard to the matter of prescription, just stated by the Chief Justice to be inconsistent with the plea of compromise, he thus says, speaking again, as always, for the court: Rhode Island, indeed, avers, that the possession was constantly disputed on her part, and efforts made from time to time to regain it; and that it has always been an open question, since the error in the line was first discovered, down to the present time. But, as we have already remarked, when the plea is set down for argument, the statements contained in it are admitted to be true. And according to the allegations there made, this long possession was unmolested. In that state of the fact, separation from all the averments of Rhode Island, the possession of more than one hundred years would become a rightful one by prescription, even if it had begun in wrong and injustice. The acquiescence of the adjoining state for such a lapse of time, would be conclusive evidence that she assented to the possession thus held, and had determined to relinquish her claims. The possession, therefore, if a defence at all, is a separate and complete one of itself; and forms no part of the accord and agreement alleged in the plea. Here, then, are two defences in the same plea, contrary to the established rules of pleading.1 After an examination of the authorities by which the decision of the court on this phase of the question is to be sustained, and after a further caution that the action of the Court in overruling the plea is not an expression of opinion, either in favour of Rhode Island or against Massachusetts, as the merits of the controversy can only arise after the pleadings have been settled and the argument of the case, the learned Chief Justice, speaking for the court, thus concludes his opinion: The course determined on recommends itself strongly to the Court, because it Techniappears to be the only mode in which full justice can be done to both parties. Each calities will now be able to come to the final hearing, upon the real merits of their respective overclaims, unembarrassed by any technical rules. Such, unquestionably, is the attitude ruled. in which the parties ought to be placed in relation to each other. If the defendant supposed that the bill does not disclose a case which entitles Rhode Island to the relief she seeks, the whole subject can be brought to a hearing by a demurrer to the bill. If it is supposed, that any facts are misconceived by the complainants, and therefore, erroneously stated; the defendants can put these in issue by answering the bill. The whole case is open; and upon the rule to answer which the court will lay upon the defendant, Massachusetts is entirely at liberty to answer, as she may deem best for her own interests.2 opinions. It is to be observed for the sake of completeness that Justices McLean and DissentCatron dissented from the opinion of the Court, the first in an elaborate and argu- ing mentative opinion, the second in a few remarks both to the effect that the plea was good and a bar to the action. Inasmuch as Mr. Justice McLean delivered the opinion of the Court on the final phase of the controversy, after technicalities of pleading were brushed aside and the case was decided upon its merits, it is advisable to quote the last paragraph of Mr. McLean's opinion, in which he thus states his views in summary form : The arguments of the counsel for the complainant, zealous and able as they were, rested mainly on the hardship and injustice of deciding this controversy on the pleadings as they now stand. The mistake is admitted; and what is there else in the bill taken in connection with all the facts and circumstances, which can give the case of the complainant a more imposing form. No fraud is imputed; the sealed instruments now and ever, must speak the same language; the effect of time will remain; and the excuses alleged in the bill for delay, can scarcely have, under any form of pleading, greater effect than may be given to them as the case now stands. I do not speak of the volume of evidence which may be thrown into the case by a change of the pleadings; but of the leading and indisputable facts which must, under any form of precedure, have a controlling influence on the decision. Believing, as I do, that in admitting the truth of the plea, Rhode Island has done nothing prejudicial to her interests; and that in the present attitude of the case, its substantial merits are before us, I feel bound to pronounce a different opinion from that which has been given by a majority of my brother judges. Taking the facts of the plea, and giving due weight to the allegations of the bill, not denied by the plea, I am led to the conclusion that the bar is complete.3 1 State of Rhode Island v. State of Massachusetts (14 Peters, 210, 200-1). 2 Ibid. (14 Peters, 210, 262). 3 Ibid. (14 Peters, 210, 279).' 14. State of Rhode Island v. State of Massachusetts. (15 Peters, 233) 1841. In the previous phase of the case, Mr. Chief Justice Taney, on behalf of the court, objected to the plea filed to the amended bill of the plaintiff as giving to the defendant an unfair advantage if it should be sustained, as limiting its case to those allegations put in issue by the plea; and for the further reason that it was multifarious, in that it presented more than one defence, whereas a plea, to be good, should confine itself to a single defence. He pointed out the distinction between a plea on the one hand and a demurrer on the other, stating the nature of each, in order that plaintiff and defendant might know and therefore prepare to argue the case on final hearing as disclosed by the pleadings, found by the court to be sufficient in form and fair to the parties. The defendant's plea was overruled, and Massachusetts was given until the following term to answer; not meaning, however, to restrict the defendant to the form of pleading known as an answer, but, in untechnical language, a reply or a statement which would allow the case, as made out by the plaintiff, to be heard at the same time with the matters of defence which the State of Massachusetts could properly interpose. The court apparently seemed to counsel for Massachusetts to incline to the demurrer, as Mr. Chief Justice Taney had said: If a defendant supposes that there is no equity in the bill his appropriate answer to it is a demurrer; which brings forward at once the whole case for argument.1 They therefore took what they were pleased to consider a hint, as they conceived it Demur- to be in their interest to do so, and in the January term Mr. Austin, Attorney-General by Massa- for the Commonwealth, and Mr. Webster,' for himself,' filed and argued a demurrer chusetts. to the bill; and Messrs. Randolph and Whipple argued against the demurrer for Rhode Island. rer filed Mr. Chief Justice Taney again delivered the opinion of the court, and as the case was so recent, and so in the minds of his brethren, it was unnecessary to enter into its details, the Chief Justice therefore contented himself with the statement that : In this state of the pleadings, the question is directly presented, whether the case stated by Rhode Island in her bill, admitting it to be true as there stated, entitled her to relief.2 In the very next sentence, which is indeed the first of the second paragraph, Mr. Chief Justice Taney reiterates the great outstanding fact by which he and his brethren were impressed: The character of the case, and of the parties, has made it the duty of the Court to examine very carefully the different questions which, from time to time, have arisen in these proceedings. And if those which are brought up by the demurrer were new to the Court, or if the judgment now to be pronounced would seriously influence the ultimate decision; we should deem it proper to hold the subject under advisement, until the next term, for the purpose of giving to it a more deliberate examination. But although the questions now before the Court did not arise upon the plea, and, of course, were not then decided, yet much of the argument on that occasion turned upon principles which are involved in the case as it now stands. The facts stated in the bill were brought before us, and the grounds upon which the 1 State of Rhode Island v. State of Massachusetts (14 Peters, 210, 262). complainant claimed relief were necessarily discussed in the argument at the bar, and the attention of the Court strongly drawn to the subject. The whole case, as presented by the bill and demurrer, has been again fully and able argued, at the present term and as the Court has made up its opinion, and are satisfied that the delay of our judgment to the next term would not enable us to obtain more or better light upon the subject, it would be useless to postpone the decision.1 The question for the Court to determine was whether, admitting the truth of the facts stated in the bill, and admitting that they could be substantiated at the hearing, the law applicable to the case as made out by the facts would in itself. preclude the relief prayed by the complainant. A decision of the court in favour of Decision the demurrer would, as far as these pleadings were concerned, decide the case in Court favour of Massachusetts against Rhode Island. It is necessary to understand the oversituation created by the demurrer, and to this situation the opinion of Chief Justice ruling Taney, speaking for the court, addresses itself. In the first place, he defines the demurrer with more care and particularity than in the preceding case. Thus : The demurrer admits the truth of the facts alleged in the bill, and it is sufficient for the purposes of this opinion to state in a few words the material allegations contained in it. Ist. It alleges that the true boundary line between Massachusetts and Rhode Island, by virtue of their charters from the English crown, is a line run east and west three miles south of Charles river, or any or every part thereof; and sets out the charters which support, in this respect, the averments in the bill. 2d. That Massachusetts holds possession to a line seven miles south of Charles river, which does not run east and west, but runs south of a west course; and that the territory between this line and the true one above mentioned, belongs to Rhode Island, and, that the defendant unjustly withholds it from her. 3d. That Massachusetts obtained possession of this territory under certain agreements and proceedings of commissioners appointed by the two colonies, which are set out at large in the bill; and the complainant avers that the commissioners on the part of Rhode Island, agreed to this line under the mistaken belief that it was only three miles south of Charles river; and that they were led into this mistake by the representations made to them by the commissioners on the part of Massachusetts; upon whose statements they relied. 4th. That this agreement of the commissioners was never ratified by either of the colonies: and the bill sets out the various proceedings of the commissioners and legislatures of the two colonies, which if not sufficient to establish the correctness of the averments, are yet not incompatible with it. 5th. The bill further states that the mistake was not discovered by Rhode Island until 1740, when she soon afterwards took measures to correct it; that she never acquiesced in the possession of Massachusetts, after the mistake was discovered, but has ever since continually resisted it; and never admitted any line as the true boundary between them, but the one called for by the charters. Various proceedings are set out, and facts stated in the bill, to show that the complainant never acquiesced; and to account for the delay in prosecuting her claim. Whether they are sufficient or not for that purpose, is not now in question. They are certainly consistent with the averment, and tend to support it.2 The Chief Justice next proceeds to state in summary form the complainant's case as it results from this series of admissions on the part of the defendant, and to 1 State of Rhode Island v. State of Massachusetts (15 Peters, 233, 269). of the the demurrer. Allegations in the bill filed by Rhode Island. |