
    EXECUTORS AND ADMINISTRATORS — PRINCIPAL AND SURETY.
    [Madison (2nd) Circuit Court.]
    Shearer, Summers and Wilson, JJ.
    
      Butt, Exr. v. Worthington.
    ¡Evidence as to Relation or a Decedent to a Note.
    Where one of the four makers of a note, claiming to be a surety, having ¡paid the balance due after the death of two of such makers, both of whom he alleges were principals as to him, brings an action against the administrator of one of the alleged principals, and issue is joined as to who were principals and who were sureties, the other remaining maker, not being a party to the action, is not incompetent under Sec. 5242 Rev. Stat., to testify as to the relation existing between the deceased and the plaintiff.
    Error to Madison common pleas court.
    Lincoln & Lincoln and Howard Black, for plaintiff in error.
    Durflinger & Emery, for defendant in error.
    
      
       Affirmed, without report, Butt v. Worthington, 57 Ohio St. 636.
    
   SUMMERS, J. ,

The only question presented in this case is as to the competency of Delilah Worthington as a witness. Plaintiff in error claims that she was incompetent under the amendment to See. 5242 Rev. Stat., which provides that if the case is not within the letter, but is plainly within the reason and spirit of the three preceding sections, the principles shall be •applied. We have examined all the cases but think it necessary to notice only two.

In Hubbell v. Hubbell, 22 Ohio St. 208, 221, the court says, “That both the party disqualified and the adverse party referred to must be parties to the record.”

In Cochran v. Almack, 39 Ohio St. 314, 316, tbe court say: Tbe clause of See. 5242 Rev. Stat., under consideration, “calls for tbe application of tbe principles of tbe three preceding sections, only .when the case is not provided for by either of these sections” and “that if a case is provided for, by tbe terms of either of tbe sections, no occasion can arise for invoking tbe spirit and reason of tbe statute to supply tbe omission of its letter or terms.”

Delilah “Worthington is not a party to the record, and being made competent by tbe terms of tbe preceding sections, the latter clause of Sec. 5242 Rev. Stat., has no application.

Finding no error on the record, tbe judgment will be affirmed.

Wilson and Shearer, JJ., concur.  