Page:North Dakota Reports (vol. 3).pdf/315

 The evidence of the witness Henderson was incompetent, also, under § 5260, Comp. Laws: “In, civil actions or proceedings by or against executors, administrators, heirs at law, or next of kin, in which judgment may be rendered or order entered for or against them, neither party shall be allowed to testify against the other as to any transaction whatever with, or statement by, the testator or intestate, unless called to testify thereto by the opposite party. But if the testimony of a party to the action or proceeding has been taken, and he shall afterwards die, and after his death the testimony so taken shall be used upon any trial or hearing in behalf of his executors, administrators, heirs at law or next of kin, then the other party shall be a competent witness as to any and all matters to which the testimony so taken relates." The defendants endeavor to escape the force of the statute by the assertion that, the agent of the deceased being present at the time the conversation took place, the case does not fall within the spirit of the law. We find no such exception in the act itself, nor do we agree with counsel for defendants that such a circumstance takes the case without the spirit of the law. The theory and philosophy of the act are that one party to a conversation or transaction shall not secure an undue advantage in proving what took place because the lips of the other party are sealed by death. Ifa third person was present, the surviving party to the conversation or transaction can call him as a witness The authorities are numerous in support of the doctrine that the presence of a third person at the conversation does not render the surviving party a competent witness against the representatives of the deceased, under statutes similar to ours. Taylor v. Bunker, (Mich.) 36 N. W. Rep. 66; Heyne v. Doerfler, (N. Y. App.) 26 N. E. Rep. 1044; Holcomb v. Holcomb, 95 N. Y. 316; Harris v. Bank, (Fla.) 1 So. Rep. 140. See, also, Ebert v. Roth, (Pa. Sup.) 24 At. Rep. 685; Reherd’s Adm'r v. Clem, (Va.) 10 S. E. Rep. 504. Nor can we see why the principle should be any different where the agent of the deceased is present at the conversation. No case has been cited which holds that such a fact makes any difference;