The opinion of the court was delivered by

Jane Mattison held the note of Abel Bentley. The plaintiff and Elias Bentley, the defendant’s intestate, were sureties thereon. The plaintiff paid the note and seeks in this action to recover of the defendant estate the amount so paid, upon the ground that by contract with said Elias he was surety for him, not co-surety with him, for Abel the principal. Whether the plaintiff was surety for Elias, or co-surety with him was- the sole question in controversy, and the only point reserved by the exceptions is, was Abel a competent witness. The question of. Abel Bentley’s liability to his sureties, was not in issue. It was lawful for the plaintiff to contract with his co-surety as to the relation he, the plaintiff, should sustain to him, and in this contract Abel Bentley had no interest, and was no party to it, and in an action to enforce it would be a competent witness ; would not be excluded by sec. 1002 B, L. Judgment affirmed.