his services; that he remained in the employ of Mr. Leighton under this contract daring the season of 1881, and that in 1883, at the request of Mr. Leighton, he went to Fort Buford to close the books of these steamers for 1881; and that he finally accepted $150 in full for the balance of the salary due him, and gave the receipt in question. The force of this affidavit is sought to be destroyed by the assertion that Joseph McC. Biggert, who made the affidavit, would not be competent to testify to these facts, because they constituted transactions with and statements by the deceased Joseph Leighton, and that the statute seals Biggert's lips as against the representatives of Leighton, he being interested, it is claimed, in the recovery. To support this view, respondent refers to § 5260, subd. 2, Comp. Laws. We do not think that the case falls within the statute. At common law, neither a party to a suit nor one not a party, but merely interested in the litigation, could be sworn as a witness. Our Code has abrogated this rule in sweeping terms, declaring in express language, not only that a party may be a witness, but that any one interested in the action may be al- lowed to testify. Both classes are expressly named in that portion of § 5260 which changes the old rule. But both classes are not expressly named in subdivision 2 of the same section, which qualifies the scope of this sweeping change. It is only a party who will not be permitted to testify as against the representatives of a decedent. Persons merely interested are not there mentioned. They stand, so far as this section is concerned, under the new rule enunciated in the first part of the section. They may testify in all cases without any such restriction. Parties and persons interested, it is declared, may testify in all cases; but parties only are declared incompetent to testify as against the representatives of a decedent. Interested persons are left under the new rule. Under statutes practically the same, the same conclusion has been reached. We cite the following cases in support of our decision that Joseph McC. Biggert, not being a party to the action, would be competent, under § 5230, subd. 2, Comp. Law3, to testify to the facts stated in his affidavits, however much he might be interested in the recovery: Berry w Sawyer, 19 Fed. Rep. 239; Potter v. Bank, 102 U. S.
