THE STATE OF MASSACHUSETTS ADS. THE STATE OF RHODE ISLAND

Mr. Justice Thompson delivered the opinion of.-the Court:

.A motion has been-made on the part of the state of Massachusetts,for leave-to withdraw the-plea/filed on'the part of' that state; and also to withdraw the appearance heretofore entered for 'the státe.

A ñíotion has also -been made on' the .part of Rhode, Island; for.' leave .to withdraw the-general replication to the defendant’s answer and plea, in bar; and-, to amend the original bill filed .inthis'ca’sel •

The motion, on the part of the state of Massachusetts, "to withdraw the appearance heretofore entered, seems to. be founded oh what'is supposed to have fallen from the Court at the preserit-ternq-in the opinion delivered upon the question of jurisdiction In-this.case. -It is thought that opinion is open to the inference that jurisdiction is. assumed, in consequence of the defendant’s having appeared in the. cause. . We did not mean to put the: jurisdiction of. thé Court upon that ground. It was oply intended to say, that the appearance, of-the state,, superseded the necessity of considering the question whether ahy and what course would have been adopted. by the. Court, if the state had not. appeared. ,We .certainly did-ndt’meaft. to be under.,stood, that the state haower of the Court to,make and establish all neeessary rules for conducting.business in', the courts, is gone into, and considered suíficiérit to authorize processed proceedings against .a state; and the Court adopted the practice prescribed'in the case of Grayson v. The Commonwealth of Virginia, 3 Dall. 320, that when process in common law1 or in equity shall issue against a state,-it sháll be served on the governor, or chief éxecutive magistrate, arid the attorney general of the' state. The Court, in that' case, declined issuing a distringas, to cornpel the appearance of the state;, and ordered, as a general rule, that if the defendant, on service of the subpoena, shall not appear at the return day therein, the complainant Shall be at liberty to proceed ex parte. And the course of practice has since been to proceed ex parte, if the state does not appear. And accordingly, in several 'cases, on the return 'of-the. process, orders have been entered; that .unless the state, appear by, a given day, judgment by default will be entered. And further .proceedings have been had ,in the causes. In the case of Chisholm’s Executors v. The State of Georgia, 2 Dall. 419, judgment-by default whs entered, and. a writ of inquiry awarded in February term, 1794. But the amendment of the constitution prevented its being executed. And in other cases, commissions have been taken out for the examination of witnesses. . By such proceedings, therefore, showing progressive stages in cases towards a final hearing, and. in accordance with this course of practice; the Court, in the case, of'New Jersey v. New York, adopted the course.'prescribed by the general order made in the case of Grayson v. The Commonwealth of Virginia; and entered a rule, that the subpoena having been-returned, executed sixty days before the return day thereof, and the, defendant having failed to appear-, it is decreed and ordered, that the complainant fie at liberty-to proceed ex.parte; and that, unless the defendant, on -being served with a copy of this decree, shall appear and answer the hill of the complainant, the Court will procéed to hear the cause on the part of the complainant, and decree on the matter of the said bill.

So that the practice seems to> be well settled,- that, in suits against, a state, if the state shall refuse or neglect to appear, upon-due service of process, no coercive measures will be taken to compel appearance; bút the complainant, or plaintiff, will be allowed to proceed ex parte.

. If, upon this view of the case, the counsel for the' statepf'Massachusetts shall elect to withdraw the appearance, heretofore entered, leave will accordingly be given;' and the state of Rhode Island'may proceed ex parte.. And if the appearance is not withdrawn, as no testimdny has been taken, we shall allow the parties to withdraw of amend the pleadings; under such order as the Court shall hereafter ipa^e.

Mr/ Justice Baldwin dissented

Mr; Justice Story did not sit in this ease.

On consideration of the motion made by Mr. "W ebster, on Saturday, the 24th of February, A.' D. 1838, for/ leave to withdraw the plea filed on the part of the defendant, and the appearance heretofore entered for the defendant; and also of the-motion made by Mr; Hazard, on the same day of the. present term, for leave to withdraw the general replication to the defendant’s answer and plea in bar, and'to Amend the original bill filed in this cáse,' and of the arguments of counsel thereupon had", as wejl for the. complainant as for the defendant; it is now here-considered and ordered by the Court; that if the counsel for the state'of Massachusetts shall elect to withdraw the Appearance heretofore entered, that leave be and the. same'is accordingly hereby given; and that the-state of Rhode Island may proceed ex parte. Rut: that, if the -appearance be not withdrawn, , that then, as no. testimony has been taken,'the parties be allowed to withdraw or amend the pleadings, under such order As the Court shall hereafter make in the premises.