Page:United States Reports, Volume 209.djvu/557

 209 U.S. Aument for Defendant. ltion, West Virginia would have been required'to assume "one-third of the debt as it existed prior to the first day of January, 1861," or "an equitable proportion to be ascertained upon the basis of territory and population." If the ordinance be valid and binding, it cannot be disre- garded by the court. While West Virginia could not by any suit prevent Virginia from disregarding it in the adjustment with her creditors of her debt or any portion of it, when Vir- nla invokes the original jurisdiction of this court in a suit against West Virgini to compel her to account for an equitable proportion of her debt prior to January 1, 1861, upon the basis of the ordinance and upon other and different bases, she may plead .the ordinance as the only basis upon which the court can decree an accounting by her. 'The court will not make a new contract for the parties. They were competent to make one for themselves, and they did make one for themselves. It is unfortunate that the two States were unable many years ago to adjust the matter in accordance with the agreement which they had entered into and which subsists between them. ' West Virginia is entitled to have the question whether or not the special agreement as to what shall constltute a just proportion of the debt solemnly entered nto between the two States is binding, determined at this juncture by the court and, if it be held to be a binding agreement, Virnig is entitled to no accounting with West Virginia in this suit for her equitable proportion of the debt of the Commonwealth prior to January 1, 1861, except under the terms of that ordinance, carried into the constitution. Complainant's draft directs that the master--"III. Make and return with his report any special or alternative state- ments of the account between the plaintiff and the defend- ant in the premi.es which either may desire him to state or which he may deem to be desirable to present to the court." This aks the court to leave the determination of the pivotal point in the case, which degendant contends should be decided by it in advance of an accounting, to a master, albeit only in

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