1820.

Mandeville

V.

Welch.

the drawee, and when recourse might be had to the former. There is no case to support the idea that the drawing of a bill under any circumstances, will amount to an assignment at law. Cases, indeed, have occurred, where, under peculiar circumstances, a Court of Equity has considered the drawing of a bill as giving to the payee a superior claim or equitable lien. Thus, in the case of Yeates v. Groves," the creditor surrendered a security he held, under an express agreement that he should be paid out of the money to arise from a particular specified fund, on which the bill was drawn, and the drawer became bankrupt. But the proposition, that the drawing of a bill on a specific fund would, per se, have created such a lien, is repelled by Lord Thurlow. It would be highly impolitic to consider the drawing of a bill, under any circumstances, as amounting to an assignment, or creating a lien, in a Court of law. These questions generally arise on the bankruptcy of the drawer. His general creditors have an interest, and ought to be heard. They cannot be made parties to a suit at law.

Mr. Jones and Mr. Lee, contra, insisted, 1. That bills and negotiable notes expressing upon their face "value received," are evidence of that fact, both as between the original parties, and against third persons. 2. The facts and circumstances of the case establish by legal inference, that the articles of agreement were wholly assigned in equity. The bills

a 1 Vez. Jun. 280.

into fragments. When he undertakes to pay an integral sum to his creditor, it is no part of his contract that he shall be obliged to pay in fractions to any other persons. So that if the plaintiff could show a partial assignment to the extent of the bills, it would not avail him in support of the present suit. But, in the present case, there is no proof of any presentment of the bills, much less of any acceptance by the defendant to establish even a partial assignment of the debt. And if there were, it would still be necessary to show that there was an assignment of the articles as an attendant security, before the plaintiff could found his action upon them. Indeed, by the very terms of the pleadings, the plaintiff undertakes to establish an assignment of the whole debt due by the articles; and if he fails in this, there is an end to his recovery. So that, in whatever view we contemplate the facts of this case, or the law applicable to it, the plaintiff has not shown any sufficient title to sustain his replication to the fourth plea.

Several other objections have been taken at the bar to the plaintiff's right of recovery, which under other circumstances would have deserved serious consideration; but, as upon the merits of the case, as they are apparent upon the record, the judgment of this Court is decidedly against the plaintiff, it is unnecessary to give any opinion upon those objections.

1820.

Mandeville

Welch.

Judgment reversed.

JUDGMENT. This cause came on to be heard on

1820.

Mandeville

V.

Welch.

the transcript of the record of the Circuit Court for the District of Columbia in the county of Alexandria, and was argued by counsel. On consideration whereof, this Court is of opinion that the said Circuit Court erred in instructing the jury, "that if they should be of opinion, from the evidence, that the said bills were drawn for the full and valuable consideration expressed on the face of them, paid by the said Prior to the said Welch, and if there be no other evidence than what is herein before stated, they ought to infer from the said evidence, that the said Prior was, and is such an assignee of the right of action upon the covenant aforesaid, as authorizes him to sustain the action in the name of the said Welch's administrator for the whole debt due by the said covenant, at the time of the said Welch's delivering the said account to the said Prior." It is, therefore, ADJUDGED AND ORDERED, that the judgment of the said Circuit Court in this case be, and the same is hereby reversed and annulled. And it is further ORDERED, that the said cause be remanded to the the said Circuit Court, with directions to issue a venire facias de novo.

An information for a quo warranto, to try the title to an office, cannot be maintained but at the instance of the Government; and the consent of parties will not give jurisdiction in such a case.

ERROR to the Circuit Court of Ohio.

This was an information for a quo warranto, brought to try the title of the defendant to the office of principal surveyor of the Virginia military bounty lands north of the river Ohio, and between the rivers Scioto and Little Miami. The defendant had been appointed to the office by the State of Virginia, and continued to exercise its duties until the year 1818, during all which time his official acts were recog nised by the United States. In that year he was removed by the Governor and Council of Virginia, and the plaintiff appointed in his place. The writ was brought, by consent of parties, to try the title to the office, waiving all questions of form, and of jurisdiction. Judgment was given in the Court below for the defendant, and the cause was brought by writ of error to this Court.

The cause was argued by Mr. Hardin, for the March 6th plaintiff, and by the Attorney-General and Mr. Scott, for the defendant. But as the cause was dismissed for want of jurisdiction, it is deemed unnecessary to insert the argument.

1820.

Wallace

Anderson.

Mr. Chief Justice MARSHALL delivered the opinion of the Court, that a writ of quo warranto could not be maintained except at the instance of the Government, March 8th. and as this writ was issued by a private individual, without the authority of the Government, it could not be sustained, whatever might be the right of the prosecutor, or of the person claiming to exercise the office in question. The information must, therefore, be dismissed.

Judgment reversed.

JUDGMENT. This cause came on to be heard on the transcript of the record of the Circuit Court for the district of Ohio, and was argued by counsel, On consideration whereof, this Court is of opinion, that no writ of quo warranto can be maintained, but at the instance of the Government; and as this is a writ issued by an individual without the authority of Government, it is the opinion of this Court, that the same cannot be sustained, whatever may be the right of that individual, or of the person who claims to exercise the office, to try the title to which, the writ is brought. It is, therefore, the opinion of this Court, that the judgment of the Circuit Court ought to be reversed, and the cause remanded to that Court, with directions to dismiss the information because it is not filed at the instance of the United States.