The opinion of the Court was delivered by

The first error assigned is an exception to the opinion of the court, admitting George Hess, the plaintiff on record in the court below, and the obligee in the writing obligatory, on which the action is founded, to testify on behalf of his son Levi Hess, for whose use the action is stated to have been commenced. The defence set up was a want of consideration in giving the writing obligatory; that George Hess, the obligee named therein, had actually received the debt for which it was given, previously from the principal debtor, but concealing this fact from the defendant below, and indeed going further, by representing that the debt still remained unpaid; and the defendant below having made himself liable for the payment of it as surety for the principal debtor; the plaintiff below thus induced the defendant below to give him the obligation in question. The counsel for the plaintiff, after that the defendant below had given some evidence, tending in a slight degree to prove the fact upon which the defendant rested his defence, offered George Hess as a witness, to repel and disprove the evidence so given by the defendant. The defendant’s counsel, however, objected to the competency of Hess, to pi'ove what he was offered for, on the ground of interest. It was then shown that George Hess had assigned all his right and interest to and in the writing obligatory, in suit, to Levi Hess, in satisfaction of a debt which he owed him; that this action was therefore brought for the use of the said Levi Hess, as stated on the record; that all the costs which had accrued were paid into court, and a further sum of money deposited there, sufficient to cover all that should accrue. The plaintiff having shown this, alleged that George Hess could have no interest in the result of *153the suit, and ought for that reason to be admitted to give evidence. But the defendant still objected to his competency. The court, however, considered him a competent- witness, and accordingly overruled the objection; whereupon, the defendant excepted to the opinion of the court in this behalf. Now, in order to decide whether the opinion of the court was correct or not, it is necessary to examine first, and see what would have been the effect produced upon the liability of George Hess to Levi Hess, by a verdict and judgment having been passed in this action in favour of the defendant below, on the ground that George Hess had, before obtaining the obligation in suit, received payment in full of the debt for which it was given, from the real debtor, and that he prevailed upon the defendant, who was bound as a surety for the payment of it, but ignorant of the payment by his principal, to give him the obligation in suit, by claiming the debt as unpaid and still due to him. If this were made to appear to the satisfaction of a jury, it would clearly be such a fraud practised by George Hess upon the defendant as would avoid the obligation, and render it no better than a counterfeit. But every obligee, or holder of an obligation, who assigns it to another, especially if he does so for a valuable consideration, impliedly at least, thereby engages that it is genuine and binding upon the obligor, unless he discloses fully and truly to the assignee, in treating for the assignment, all the facts and circumstances connected with the execution and delivery of the obligation, and, after being thus advised, the assignee agrees to take it at his own risk. Hence, George Hess would have been liable, upon such implied engagement, to have paid to Levi Hess, the amount of the obligation in suit here, if the defendant had succeeded in making the defence which he set up, good before the jury. But George Hess was admitted as a witness, to give evidence for the very purpose of preventing this result; and, consequently, to prevent his becoming liable to Levi Hess for the payment of the obligation, upon his implied warranty or engagement, arising from the assignment, that it was a valid and binding obligation. Thus it appears that he was interested in the event of the suit, and that his interest was in favour of a recovery being had by the plaintiff, and therefore was an incompetent witness for him; so that the court below erred in admitting him to testify as such.

The second error, which is the only remaining one, is an exception to the first part of the charge of the court to the jury; in which the court state, that “ the agreement (meaning that upon which the plaintiiPs claim is founded) purports to be given on a compromise of a claim, which was due from Jacob Houk to George Hess, and also a debt due by said Houk to John Ley, which claim had been assigned by Ley to Hess, as his assignee, under a voluntary assignment.” It is very obvious, that the court fell here into an error, in construing the agreement. They *154considered it a compromise of two distinct claims: the first, as they say, due from Jacob Houk to George Hess, and the second due from said Houk to John Ley, which had been assigned by Ley to George Hess. Now, the agreement speaks of but one claim, which was an account that John Ley originally had against Jacob Houk, and assigned to George Hess, for the payment whereof William Stroh had, in some way, made himself liable to George Hess. This, the agreement expressly declares, was the subject of dispute between the parties to it, and that the agreement was made for the purpose of compromising and settling the dispute concerning this claim, without making the least mention of any other. The idea of there having been tivo separate claims compromised and settled by the agreement, is carried by the court throughout their charge to the jury. And under this erroneous impression of the import of the agreement, the court, among other things, instruct the jury, that although Houk has paid George Hess all that he owed directly to him, yet the second claim which George Hess had, as assignee of John Ley, against Houk, may have remained unpaid, and have amounted to the #235, the amount for which the obligation in suit was given. This instruction was certainly calculated to mislead the jury, because, according to the tenor of the agreement, the only claim which George Hess had against Houk, was that which had been assigned to him by Ley; so that if Houk paid off any claim, coming from him to George Hess, it ought to have been taken that it was that claim, unless other evidence had been given, showing clearly that Hess had a second or different claim against Houk, to which the evidence of payment was applicable.

Judgment reversed, and a venire de novo awarded.