Perkins v. Ramsey. loose conversations at Boonesborough; and it may be further observed, that the residents at Strode's and McGee's stations (which were the nearest ones), as well as many others, who were conversant in that section of country, had never seen, and did not know of, the pond No. 1, until a considerable time after the date of the entry. The court is, therefore, of opinion, that this pond was not so generally known, or could be so readily found, as to support and uphold this entry; and that it would be requiring more than ordinary and reasonable diligence, to traverse and search all the dividing ridges represented on the connected plat. But we are not satisfied, that, acccrding to the legal principles or wellsettled rules for construing entries, Slate creek can be substituted for Hingston's fork on the contrary, we believe it would be making, rather than construing an entry. No case has been produced, where this has been permitted, and it is believed, none such exists. The counsel for the appellants contends, that as from the proofs in the cause, it appears, that Slate creek was by many supposed to be Hingston, this circumstance would authorize such substitution; to this it may be answered, that this mistake existed among the hunters and locators at Boonesborough only, and that among them, there were several who knew Slate creek by its appropriate name; to which it may be added, that all the hunters and locators at Strode's and McGee's stations, as well as many others, also knew Slate creek, and that it was *not a water of Hingston's fork; so that a majority of [*276 those conversant in that section of country did not labor under the mistake. We are, therefore, of opinion, that it would be extending the rules of construction too far, to make this substitution, in support of the mistake of the few, against the knowledge of the majority; if a substitution could be permitted in any case. We are further of opinion, that Hingston's fork was of more general notoriety than any of those streams, and ought not to be disregarded in construing this entry; that it is one of the prominent calls to ascertain its situation; and that a subsequent locator, having arrived at Hingston's fork, and finding the pond designated on the plat 37, which is proved to have been known to many, and is little inferior in size to the pond 1, might rationally conclude, that the locator of the entry under consideration, had mistaken some western branch of Hingston, for Spencer's creek; thus situated, he would conjecture, that an entry containing such incorrect, mistaken or false calls, and requiring so much diligence and labor, was so doubtful and uncertain, as to induce him to abandon further research. This entry, therefore, from a full view of all the proofs and circumstances, is deemed invalid, for want of that certainty and precision required by law. In accordance with this opinion, is the decision of the court of appeals of the state of Kentucky, in the suit of Dunleary v. Reed and others, wherein the same entry was examined, upon substantially the same evidence. Decree affirmed, with costs. 127 *MANDEVILLE v. WELCH. Assignment of choses in action. Bills of exchange and negotiable promissory notes, are distinguished from all other patrol contracts, by the circumstance, that they are prima facie evidence of valuable consideration, both between the original parties, and against third persons. Where a chose in action is assigned by the owner, he cannot interfere to defeat the rights of the assignee, in the prosecution of a suit brought to enforce those rights. It makes no different in this respect, whether the assignment be good at law, or in equity. But this doctrine only applies to cases where the entire chose in action has been assigned, and not to a partial assignment.1 ERROR to the Circuit Court for the district of Columbia. This was an action of covenant brought by the plaintiff, James Welch, for the use of Allen Prior, against the defendant Mandeville, one of the firm of Mandeville & Jamesson, for the breach of certain articles of agreement set forth in the declaration. Several pleas were pleaded by the defendant; but as the opinion of this court turned altogether upon the fourth set of pleadings, on which issue was joined, and at the trial, a bill of exceptions taken, it is unnecessary to state the other pleadings. The fourth plea alleged a release of the cause of action by the plaintiff, before the commencement of the present suit. The plaintiff replied, in substance, that Welch being indebted to Allen Prior, in a sum exceeding $8707.09, and Mandeville & Jamesson *being indebted to Welch, by *278] virtue of the covenant in the declaration mentioned, in the same sum of $8707.09, Welch did, in the year 1799, appropriate, assign and transfer to Prior, by a good and sufficient assignment in equity, the same debt due by reason of the same covenant, of which appropriation and assigment to the use and benefit of Prior, Mandeville, afterwards, in 1799, had notice; that the present suit was brought for the sole use and benefit of Prior, and Mandeville, at its commencement, had notice thereof, and knew the same suit was depending for the use and benefit of Prior, at the date of the pretended release; that the release was obtained, without the knowledge, consent or approbation of Prior, or of his attorney in court; and that Welch had no authority from Prior, or his attorney, to execute the release, which was known to Mandeville, at the time of the release; and that the release was made, with the intent to defraud Prior, and to deprive him of the benefit of this suit. To this replication, there was a rejoinder and issue, upon which the parties went to trial. At the trial, the plaintiff, to prove that Welch did transfer and assign to Prior, by a good and sufficient assignment in equity, the debt in the replication mentioned, gave in evidence to the jury, the articles of agreement in the declaration mentioned, and sundry indorsements of payments thereon, and a memorandum also thereon, dated the 1st of January 1798, and signed by Welch, stating that there then remained owing to him, on the articles, payable at the times therein mentioned, the sum of $8707.09. *The *279] plaintiff further offered three bills of exchange, drawn by Welch, in favor of Prior, upon Mandeville & Jamesson, dated on the 7th of September 1799, each for $2500, payable to Prior, or his order: one on the 24th of November 1800, another on the same day and month 1801, and the third on 1 Tiernan v. Jackson, 5 Pet. 580, Mandeville v. Welch. the same day and month 1803, being the respective times at which certain instalments for like sums would become due on the articles of agreement stated in the declaration. Each of these bills purported to be "for value received" of Prior, and were directed to be charged "to account as advised." The plaintiff further offered in evidence to the jury, an account rendered to Welch by Mandeville & Jamesson, dated the 31st of January 1798, stating the balance of $8707.09, due to Welch, and payable by instalments, in the manner mentioned in the articles of agreement; and proved that this account had been delivered to Prior by Welch. The defendant then gave in evidence the bill and proceedings in a suit of chancery, in Fairfax county, by Prior against Welch and Mandeville & Jamesson (excepting the answers of the latter), which suit was brought to recover the amount of the three bills of exchange from Mandeville & Jamesson, as debtors of Welch, and was discontinued by the plaintiff, Prior, after the answer of Welch had come in, denying that Prior was owner of the bills, and asserting that Prior held them merely as his agent, and for his use. And the defendant further proved, that Welch, had never authorized the present suit to be brought, unless the circumstances above stated would have given Prior authority to institute the same. [*280 The defendant then prayed the court to instruct the jury, that if, from the evidence so given, they should be of opinion, that the sums for which the bills were drawn amounted to less than the sums payable by Mandeville & Jamesson to Welch, under the covenant, and were known to be less by Welch, then Prior is not such an assignee of the covenant as would authorize him to sustain this suit in the name of Welch; which instruction the court gave; but further instructed the jury, that if they should be of opinion, from the evidence, that the bills were drawn for the full and valuable consideration expressed on the face of them, paid by Prior to Welch, and if there was no other evidence, than what is before stated, they ought to infer from the evidence, that Prior was, and is, such an assignee of the right of action upon the covenant, as authorized him to sustain this action in the name of Welch's administrator (Welch having died pending the pro ceedings, and his administrator having been made party to the suit), for the whole debt due by the covenant, at the time of Welch's delivering the account above stated to Prior; and further, that the bills were prima facie evidence of such value having been paid by Prior to Welch. The jury found a verdict for the plaintiff, under this instruction; and the cause was brought before this court by a writ of error, to revise this among other supposed errors assigned upon the record. *March 2d. Swann and Taylor, for the plaintiffs in error, argued: [*281 1. That the court below erred in its instruction to the jury that the words "value received" were evidence against Mandeville & Jamesson, that money had been actually paid by Prior to Welch, or the bills. They do not claim under the bills, nor under Welch as the drawer. They claim as assignees of the fund on which the bills were drawn. In the case of Evans v. Beatty, 5 Esp. 26, Lord ELLENBOROUGH held, that on a guarantee to pay for goods sold to a third person, the declarations of the latter were not evidence to charge the person giving the guarantee; because there might be collusion. between the third person and the plaintiff. So, in this case, if the defend5 WHEAT.-9 129 Mandeville v. Welch. ant proved an assignment to him, Welch's declaration that he had previously assigned to the plaintiff, would not be admissible, and his declaration in writing cannot have any greater effect. 2. It was not the intention of Welch, and of Prior, that the whole covenant should be assigned, nor does the law imply such an assignment. The bills are general, not payable out of any particular fund, and there is no proof of any agreement between Welch and Prior, that the latter should have a lien on the funds in the hands of Mandeville & Jamesson. The legal consequence of the decision of the court below is, that the drawing of a bill of exchange amounts, per se, to an assignment in law of the funds of the drawer, in the hands of the drawee, so as to authorize a suit in the name of *282] the drawer, without his consent, against 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, 1 Ves. jr. 280, 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. Jones and Lee, contrà, 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 *283] *being prima facie evidence of an equivalent advance by Prior, the possession by him of the articles of agreement, and the delivery to him of the account signed by Mandeville & Jamesson, furnish a legal presumption, that both were delivered as security for the payment of the advance. He thus accquired a lien on them, similar to that acquired by the delivery of title deeds as security for a debt, which lien has always been deemed by courts of equity equivalent to a mortgage. Sweas v. Camelford, 1 Ves. jr. 235; Walwyn v. Sheppard's Assignees, 4 Ves. 119; Jones v. Gibbons, 9 Ibid. 411; Ex parte Langston, Rose 26; Russel v. Russel, 1 Bro. C. C. 269. So also, the deposit of a note or bill, as security for a debt, entitles the creditor to enforce his lien in equity. Ex parte Crossbey, 3 Bro. C. C. 237; Ex parte Byas, 1 Atk. 148. But supposing this position not to be correct, still it is contended, that there was here a partial lien or appropriation of the debt due from Mandeville & Jamesson under the articles, to the exent of the sums due on the bills, which is sufficient to authorize Prior to maintain this action. The drawing of a bill of exchange is, in itself, an assignment by the drawer to the payee of the money due from the drawee. Mandeville v. Welch. [*284 The acceptance is not necessary to make the assignment complete, but only to give an action against the drawee in the name of the payee. Gibson v. Minet, 1 II. Bl. 569, 602; Tatlock v. Harris, 3 T. R. 174. In the case of Clark v. Adair, cited by Mr. Justice BULLER in Masters v. Miller, 4 T. R. 343, it was determined, *that an unaccepted bill was such an assignment as entitled the payee to the money. In Yeates v. Groves, 1 Ves. jr. 280, an order to pay out of a particular fund, though not accepted, was considered such a transfer as to prevent the assignee of the party who became bankrupt after drawing the order, from claiming the fund on which the order was drawn. March 7th, 1820. STORY, Justice, delivered the opinion of the court.Two questions arise upon the instruction to the jury: 1. Whether the bills were prima facie evidence that value had been paid for them by Prior to Welch? 2. Whether, under all the circumstances of the case, Prior was an assignee in equity, entitled to maintain the present action? Upon the first point, we are of opinion, that the law was correctly laid down by the court below. The argument of the defendant's counsel admits, that where a bill imports, on its face, to be for "value received," it is prima facie evidence of that fact, between the original parties; but it is stated, that it is not evidence of the fact against third persons. We know of no such distinction. In all cases, where the bill can be used as evidence either against the parties, or against third persons, the same legal presumption arises, of its having been given for value received, as exists in relation to a deed expressed to be given for a valuable consideration. In this respect, bills of exchange and negotiable notes are *distinguished from all [*285 other parol contracts, by authorities which are not now to be questioned. Chitty on Bills (2d edit.) 12, 62; 1 Wils. 189; 3 Burr. 1516; 1 Salk. 25; 1 Bos. & Pul. 651. The other question requires more consideration, though it does not, in our judgment, present any intrinsic difficulty. It has been long since settled, that were a chose in action is assigned by the owner, he shall not be permitted, fraudulently, to interfere and defeat the rights of the assignee, in the prosecution of any suit to enforce those rights. And it has not been deemed to make any difference, whether the assignment be good at law, or in equity only. This doctrine was fully recognised by this court when this case was formerly before us. (1 Wheat. 235) It was then applied to a case, where the whole chose in action was alleged to have been assigned; and it was certainly then supposed, that the doctrine in courts of law had never been pressed to a greater extent. We are now called upon to press it still further, so as to embrace cases of partial assignments of choses in action. It is contended on behalf of the plaintiff, in the first place, that the facts of this case establish, by legal inference, that the articles of agreement were entirely assigned in equity to the plaintiff. If this ground fails, it is, in the next place, contended, that an assignment was made of the debt due by the articles, to the extent of $7500, the amount of the bills drawn on Mandeville & Jamesson, and that *this, per se, authorizes Prior to [*286 sustain the present action. In support of the first position, it is argued, that the bills being prima facie evidence of an equivalent advance made by Prior, the possession, by |