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. Judgment reversed. JUDGMENT. This cause came on to be heard 290*] on *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 hereinbefore 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 said Circuit Court, with directions to issue a venire facias de noto. See S. C., 1 Wheat. 233. Cited 5 Pet. 394, 598; 6 Pet. 297; 1 Sumn. 141, 142, 146; 11 Bank. Reg. 159, 300, 301; 12 Bank. Reg. 395: Curt. 241, 242; 3 Wood. & M. 386; 2 McLean, 236; 2 Ben. 13; 2 Ware (Da.), 207; 13 Nott. & H. 241. 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. This was an information for a quo warranto, NOTE.-The writ of quo warranto was in the nature of a writ of right for the king, against him who claimed or usurped any office, franchise, or liberty, to inquire by what authority he supported his claim, in order to determine the right. 3 Bl. Com. 262. The quo warranto at common law was a criminal proceeding; and in addition to the judgment of seizure, or of ouster, there was judgment that the defendants be taken to make fine to the king for the usurpation. The information in the nature of a quo warranto, under the statute of New York, was strictly a criminal proceeding, being for the usurpation of a state prerogative. Attorney-General v. Utica Insurance Company, 2 John. Ch. 377. 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 Sciota 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 a which time his official acts were recognized 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 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. *Mr. Chief Justice MARSHALL deliv- [*292 ered the opinion of the court, that a writ of quo warranto could not be maintained except at the instance of the government, 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 war1ranto 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. Cited-3 Wall. 239. and of The King v. Jones (8 Mod. 201), that the king's bench did not deem itself authorized even to award a new trial. But it is now so far considered a civil proceeding that a new trial may be granted. King v. Francis, 2 Term. R. 484. But this was not decisive as to whether it be properly of a civil or criminal nature, for the power to award new trials was subsequently exercised in all cases of misdemeanors. 6 Term. R. 638. ceedings by information in the nature of quo warIn New York, the writ of quo warranto, and proobtainable in those forms are now obtained by ranto are abolished; and the remedies heretofore civil actions under the code of procedure. Code, s. 428; 4 Seld (N. Y.) 71. The action under the code in New York, although differing in some of the formula of procedure from It was held to be so far a criminal proceed- proceedings by information, or by writ, is nevering in the cases of Rex v. Bennett (1 Štr. 101),theless in substance the same, and is governed by 293*] *[LOCAL LAW.] POLK'S LESSEE v. WENDELL ET AL. There are cases in which a grant is absolutely void; as where the state has no title to the thing granted, or where the officer had no authority to issue the grant, &c. In such cases, the validity of the grant is necessarily examinable at law. evidence an office copy of an abstract (marked K. in the transcript) of the warrants, on which Seveir's survey and grant were founded; the original book of entries being destroyed. From this copy it appeared that all the warrants were issued from the Washington county office in April or May, 1780, to the surveyor of Sullivan county, and purported to be founded on A grant raises a presumption that every prereq- entries which bore date on the 16th of Septemuisite to its issuing was complied with, and a warrant is evidence of the existence of an entry; but ber, 1779. They were all signed "Landon Carwhere the entry has never in fact been made, and ter, entry-taker." He also produced, and the warrant is forged, no right accrues under the offered to give in evidence, office copies of waract of North Carolina of 1777, and the grant is void. Where a party, in order to prove that there were rants from the same office (marked H. and L. no entries to authorize the issuing of the warrants, in the transcript), of the same dates and numoffered to give in evidence certified copies of war- bers, but to different persons, and for difrants from the same office, of the same dates and ferent quantities of land. These warrants apnumbers, but to different persons, and for different quantities of lands: Held, that this was competent peared to be issued by John Carter; [*295 evidence to prove the positive fact of the existence and were offered, like Seveir's warrants, for of the entries specified in the copies; but that in the purpose of showing that the latter were order to have a negative effect in disproving the entries alleged to be spurious, the whole abstract spurious, and, consequently, that Seveir's grant ought to be produced in court, or inspected under was void. The plaintiff also offered in evia commission, or the keeper of the document ex-dence a grant of Seveir for 32,000 acres, dated amined as a witness, from which the court might ascertain the fact of the non-existence of the con tested entries. E 27th of November, 1795, which purported to be founded on thirty-six warrants, all of them, except the two first on alleged entries, dated on the same 16th of September, 1779. He also offered to prove that the two first warrants had been satisfied by prior grants, and in respect to the others, that warrants for the same numbers issued to other persons, and were recognized in the abstract of Carter's entry-book, but none of Seveir's. The plaintiff also offered to prove that the warrants and locations of Seveir had been insinuated, in 1794 or 1795, into the entrytaker's office without his knowlege; that they were rejected by the entry-taker as spurious, and that the locations were in Seveir's handwriting. The plaintiff also offered to give in evidence a report to the legislature of Tennessee, of November 8th, 1803, declaring all Seveir's warrants to be fraudulent fabrications. All this testimony was overruled and rejected by the court, to which the plaintiff excepted. Å verdict was taken, and judgment rendered for the defendants, and the cause was brought by writ of error to this court. RROR to the Circuit Court of West Tennessee. This was an action of ejectment, 294*] for five thousand *acres of land, in the state of Tennessee, granted by the Governor of North Carolina to Polk, the lessor of the plaintiff, on the 6th of May, 1800, on a warrant from John Armstrong's office, dated May 25th, 1784. The defendants, who were proved to be in possession of part of this tract, claimed title under a grant from the Governor of North Caro- Mr. Harper and Mr. Gaston, for the plaintiff, lina to John Seveir, for twenty-five thousand argued: 1. That it was competent for the and sixty acres, bearing date on the 28th of plaintiff to show that no entries had been August, 1795. This grant appears by the an- made in the land-office of North Carolina, and nexed certificate of survey to be founded on that therefore the governor had no power to forty land warrants of six hundred and forty issue the grant. The act of 1777, c. 1, s. 3, acres each, numbered from 1634 to 1676, and makes the entry the first essential *and [*296 surveyed in one entire tract. The land in dis- indispensable requisite to obtaining a title to pute was proved to lie within the lines of Se- vacant land. The 5th section points out the veir's grant. The plaintiff having proved that difference between location, entry, and warJohn Carter was entry-taker of Washington rant. The entries are the foundation of the county until February 28th, 1780, and that claim, and are all to be numbered in the order Landon Carter was then appointed, offered in' in which they are made. The 9th section de all the rules which regulated the proceedings under the former practice. 30 Barb. 501. The modern information, in the nature of the writ of quo warranto, tends to the same purpose as the ancient writ; being properly a criminal prosecution, in order to fine the defendant for his usurpation, as well as to oust him from his office; yet is usually considered at present as merely a civil proceeding. 4 Black. Com. 307, 308. The only proper proceeding, for trying the title to an office, is the action, in the nature of quo warranto, brought by the people of the state. Mayor of New York v. Conover, 5 Abb. Pr. 171; Lewis v. Oliver, 4 Abb. Pr. 121; People v. Sampson, 25 Barb. 254; 24 N. Y. 86. A proceeding in the nature of a quo warranto must be in the name of the United States. Territory v. Lockwood, 3 Wall. 236; United States v. Lockwood, Burn. 215. An information in the nature of quo warranto lies against those who claim to exercise some public office or authority; to inquire into the election of an officer of a corporation. Commonwealth v. Dearborn, 15 Mass. 125; Commonwealth v. Fowler, 10 Mass. 290; Commonwealth v. Union Ins. Co., 5 Mass. 230; Commonwealth v. Athearn, 3 Mass. 285; Sudbury v. Stearns, 21 Pick. 148. A quo warranto cannot put the legal officer in his place. Strong, petitioner, 20 Pick. 484, 497. 5 clares every right obtained in any other man- Governor of North Carolina to make a grant to ner "utterly void." This section follows the Sevier. The best evidence was offered of the directions in regard to the entry, and makes a pretended warrant on which his grant was valid entry the one thing needful. In the con- founded, and, also, to show that other warstruction of this statute, it has been settled in rants existed of precisely the same numbers. the courts of North Carolina that no legal This alone raised a presumption that one or title is created until the grant; and that the the other must have been spurious. According elder grant, though founded on a junior entry, to the act of 1777. c. 1, s. 5, there could not is, at law, to be preferred to a junior grant on possibly be two sets of entries of the same an elder title; that an equitable interest is ac- numbers, without the most extraordinary negquired by the first entry, which is to be en- ligence. This testimony ought to have gone to forced as other equitable titles are enforced. It the jury, even if there had been no other. It is also settled, that when a grant issues, it fur should have been left to them to decide which of nishes sufficient prima facie evidence that all the two sets of warrants was spurious under the the prerequisites of the law have been com- peculiar circumstances of the case. But it was plied with, and that it cannot be avoided by supported by corroborating evidence of great showing irregularities in the conduct of the weight; by the abstract of Carter's entries. officers who superintended the progress of the The competency of this evidence may be mainclaim from the entry to the grant. There tained both on the ground of common law have been loose dicta, unsatisfactory and in- principles and on special enactments of the conclusive reasonings, from which other in- local legislature. It is the best which the natferences have been drawn. But it is denied ure of the case admits of. Works compiled that it ever was law in North Carolina that a by authority and order of the government of grant should be good if it could be clearly the country, on public occasions, and on subshown that it was not founded on an entry, but jects of public interest, are recognized as auwas wholly fraudulent. It would have been thentic documents in courts of justice, and adimpossible to pronounce such a decision with- mitted as evidence in matters of private right. out a violation of the plain, strong words of Such are, in England, the celebrated Doomsthe 9th section of the act, shall be deemed, day Book; the Survey of King's Ports; the and are hereby declared utterly void." Such Valor Beneficiorum; copies of Surveys of 297*] a decision, too,*would have been incon- Church and Crown Lands; *kept in un- [*299 sistent with the first principles of the common suspected repositories. The day-book of a law, fraud being the object of its peculiar ab- | prison, containing a narrative of the transachorrence, and contaminating every act. Courts tions there, is proof of the time of a prisoner's of common law have a concurrent jurisdiction committment. So, terriers are evidence of with courts of equity in all cases of frauds. manorial boundaries, either when found in the It is impossible that a grant, begun and end-regular repositories or in places where the cused in fraud, where there has been no claim entered, nor purchase made from the state, should be valid. If, however, a doubt could exist in the case of a grant issuing before the year 1789, assuredly none can be entertained on a grant made by the Governor of North Carolina since the cession of the territory, which now forms the state of Tennessee, to the United States. By the act of cession, the sovereignty and domain are relinquished by North Carolina, and a mere ministerial power is reserved to the governor of that state to perfect grants; "where entries have been made agreeably to law, and the titles not perfected." The state has no longer authority to dispose of the lands. She is no longer their proprietor. The governor has a mere naked power, unconnected with an interest, to make grants where entries have been previously made. A grant issued where The Attorney-General and Mr. Williams, no entry has been made, is an act wholly un- contra, insisted: 1. That the proceedings on supported by the power, and cannot possibly | which a grant issues are to be presumed to be transfer an interest. The whole question has, in fact, been already settled by the reasoning and decision of this court, when this case was 298*] formerly before it. *2. The evidence offered by the plaintiff was proper in itself, and relevant to show that no entries had been made, prior to the cession, authorizing the 3 1.-Fernor's case, 3 Co. Rep. 77. 2.-3 Bl. Com. 431; Bates v. Graves, 2 Ves., Jun., 295; 8Ves., Jun., 283; Arthur Legat's case, 10 Co. Rep. 109. tody can be satisfactorily explained. But, in this case, there are positive statutes of the legislature of Tennessee by which this book of entries and copies from it are made evidence. In addition to all this, was the parol evidence. The introduction of these locations and warrants into the office in 1795, in a secret manner, betrayed a consciousness that they had not before existed there. This accumulation of proof fully established the plaintiff's allegation; or, at all events, it had a tendency to establish it, and its sufficiency ought to have been left to the jury. As to the legislative report, there is some reason to believe that the legislature of Tennessee intended, by their act of 1807, c. 82, to make it evidence. At least it might have been proper evidence to bring home notice to the defendants, prior to their purchase. correct. They constitute a question between the state and the grantee *only. Be- [*300 tween private parties, evidence dehors the patent is wholly inadmissible at law. 2. The testimony offered in this case was clearly inadmissible upon the principles of the former decision of this court, in which, it may be added, 5. Phillips, 304; 11 East, 234; 1 Maul. & Selw. 294. 8.-Laws of Tenn. 261. 4.-Gilb. Law of Evid. 69; Phillips on Evid. 303, 106; Id. 135; Id. 359; Id. 497; 3 Hayw. 215; 1 Tenn. 3.-9 Cranch, 87. 304. 9.-Spalding v. Reeder, Maryl. Rep. 187; 1 Hayw. Rep. 318; 2 Tenn. Rep. 25; Id. 47. that the court has gone further than the local | the mind of every member of the court of the Mr. Justice JOHNSON delivered the opinion of the court: Both these titles are founded on what are called removed warrants, and priority of entry is altogether immaterial to the issue. But the existence of an entry, it is contended on behalf of the plaintiff, is indispensible to the issuing of a warrant of survey, and to the validity of grants, which ought by law to have their origin in such entries. With a view, therefore, to impeach the prior grant to Sevier, under which these defendants claim, the plaintiff proposes to prove that there never were in fact any entries made to justify the issuing of the warrants under which their title had its inception. It has been also suggested, that his intention further was to prove the warrants themselves forgeries. But this does not appear from the bill of exceptions, as will be more particularly shown when we come to analyze it, with a view of determining what evidence appears to have been rejected in the Circuit Court. 302*] *The evidence offered in the court below, with a view to invalidating Sevier's grant, was rejected, and on the writ of error to this court, one general question arises, whether any, and if any, what evidence of facts, prior to the issuing of a grant, shall be received to invalidate it. When the case was before this court, in the year 1815, the same question was brought to its notice, and received its most earnest and anxious attention. Long experience had satisfied 1.-9 Cranch, 98. 2.-Fletcher v. Peck, 6 Cranch, 133. the same principles on which it is administered between citizens of the same state. Hence, this court has never hesitated to conform to the settled doctrines of the states on landed property, where they are fixed, and can be satisfactorily ascertained; nor would it ever be led to deviate from them, in any case that bore the semblance of impartial justice. It has been supposed, that in the former decision alluded to in this case, this court has gone beyond the decisions of the courts [*303 of Tennessee, in opening the door to inquiries into circumstances occurring prior to the issuing of a grant. An attentive perusal of that decision will detect the error; or prove, if it has done so, it has done it on principles that cannot be controverted. It is obvious from the report of the decision that it was at that time presented under an aspect somewhat different from that in which it now appears. The forgery of the warrants constituted a part of the case which the plaintiff was precluded from making out in evidence. And to collect the purport of the decision, at that time rendered, the best resort will be to the words in which it is delivered. Two sentences will give the substance of that decision. They are expressed in the following words: "But there are cases in which a grant is absolutely void; as where the state has no title to the thing granted, or where the officer had no authority to issue the grant. In such cases, the validity of the grant is necessarily examinable at law." And "If, as the plaintiff offered to prove, the entries were never made, and the warrants were forgeries, then no right accrued under the act of 1777; no purchase of the land was made from the state; and independent of the act of cession to the United States, the grant is void by the express words of the law." These two sentences comprise the substance of that decision. For, as to the doubts expressed in the last paragraph of the opinion, relative to the inception of a right in the ceded territory prior to the cession, it is but a doubt, and is removed by a reference *to the [*304 6th section of the act of 1784. As to the question what evidence shall be sufficient to prove the existence of the entry, the court is silent. As to what validity shall be given to the grants emanating from North Carolina, the decision places it upon the statutes of North Carolina. And although an opinion is expressed that North Carolina could make no new grants after the cession, who could have entertained a doubt upon that question? The right reserved to her was to perfect incipient grants; but what res- | Carolina have been performing an act toward traint is imposed upon her discretion? or what doubt suggested of her good faith in executing that power? perfecting a right, where, by the supposed case no right could possibly have existed, no entry ever was made, and the warrant forged? Å new grant, it must be admitted, she could not have made; but would not this have been a new grant? We will respect the decisions of the state tribunals, but there are limits which no court can transcend. But the courts of Tennessee have not so decided. In the case of Dodson v. Cocke & Stewart, it will be found that the marginal note of the decision is too general in its expression, and that the court decides nothing but what has been expressly admitted by this court, since the legal validity of the entry is made the very basis of that decision. So of the case of Sexier & Anderson v. Hill, the only point on which the judges seem to have coincided was, that no other consideration should be proved than what the grant expressed on the face of it (see the opinion of Judge Humphreys). If any other point is decided, it is immaterial to the present question. It will be perceived, that as to irregularities committed by the officers of government prior to the grant, the court does not express a doubt but that the government, and not the individual, must bear the consequences resulting from them. On the contrary, it declares that the existence of the grant is, in itself, a sufficient ground, from which every man may infer that every prerequisite has been performed. All, then, that it decides is, that an entry was indispensable as the inception of a title to Sevier; that if an original grant had issued to him after the cession, or a title had been perfected where there was no incipient title before the cession, as in the case of a grant on a forged warrant, and no entry, that it would be void. But, in admitting that the grant shall support the presumption that every prerequisite existed, it necessarily admits that a warrant shall be evidence of the existence of an entry. Nor is it by any means conclusive to the contrary that *This court disavows having ever de- [*307 305*] the entry does not appear *upon the ab- cided more than that an entry, or other legal instract of entries in Washington county, re- cipiency of title, was necessary to the validity corded in the secretary's office. On the con- of a grant issued by North Carolina, for lands trary, if the warrants issued are signed by the in Tennessee, after the separation. They have entry-taker, it is conclusive that the locations never expressed an inclination to let in inquiries were received by him, and if he omitted to en-into the frauds, irregularities, acts of negligence, ter them, his neglect ought not to prejudice the rights of him in whose favor the warrants were issued. fect to a forged warrant. or of ignorance of the officers of government, prior to the issuing of the grant; but, on the contrary, have expressed the opinion that the . That an entry is necessary to give validity to government must bear the consequences. But these grants, we think not only perfectly de- while they admit that a genuine warrant shall ducible from the statutory provisions in force be in itself the evidence of an entry, they canin Tennessee, but also from the legal adjudinot yield to the absurdity of attaching that efcations of their courts. Nay, they have not assumed the principle, that the issuing of the grant shall be deemed a recognition of the legal sufficiency of an entry; but have decided a grant void which emanated from an entry not sanctioned by the statutes of North Carolina, though the grant was issued when it might have lawfully issued. (Jackson v. Honeycut, 1 Tenn. Rep., 30.) And in the case of Dodson v. Cocke & Stewart, so much relied on in the argument, the legal validity of a grant is expressly referred to the validity of the entry at the time it was made. (Id. 232.) It would, indeed, be wonderful if it were otherwise, since it is the acknowledged law of Tennessee, that a prior entry will give precedence to a junior grant; a principle which obviously supposes the entry to be of the essence of the transfer of property; the grant, that which gives it palpable existence; or, at least, that it holds the freehold in abeyance, ready to vest upon the contingency of the expected grant. It has also been asserted, that the courts of the state of Tennessee have frequently, and uni306*] formly, *decided directly the reverse of the opinion of the Supreme Court. This assertion has reference to that part of the opinion which declares, that a grant issuing without entry, and on forged warrants," is a void grant. Such an idea could only have resulted from inattention to the obvious distinction between the acts of the state's agents or officers and the impositions practiced upon them; between the case of a right really incipient, and that where no right ever did exist. How could the state of North With regard to the decisions of the state of North Carolina, it is a well-known fact, that on the subject of the effect of entries, the courts of the two states are at direct variance. And, singular as it may seem, opposite constructions of the same laws constitute rules of decision to their respective courts. And if it is the law upon their own citizens, we are willing to apply the same rules of property to all others. But even the courts of that state, in their rigid adherence to the dates and effect of grants, and the principle that they are not void but voidable, are sometimes driven to the most awkward shifts in adjudicating on cases affected by the act of 1777. Thus, in The Trustees of the University v. Sawyer (Taylor's Rep., 114), they have said, that although "they cannot declare a grant void, they will adjudge that the grantee takes nothing under it." And in a case decided in 1802 (N. Carolina Rep., 441), they have found *themselves compelled, under their acts [*308 of 1777, 1778 and 1783, to declare a grant absolutely void, on the ground of the invalidity of the entry with reference to facts that required the intervention of a jury. So that it would seem even in North Carolina a valid entry was indispensable to a valid grant. That priority of entry would not give priority to a junior grant is certainly decided in the case of Williams v. Wells, reported in the North Carolina Law Repository, 383. But even that point, it would seem; had not been well established as a principle of law, since the jury in that case (which is a recent one) manifested their dissat |