(dissenting). — I do not concur in that part of the foregoing opinion which approves of the remark of the trial judge as to the character of the paper counsel proposed to read as the deposition of the absent witness. In the meaning of the statute, section 3596, the matters set forth in an application for a continuance as being the facts which could be proved by the absent witness are the deposition of such witness, and are, as directed by the statute, to be “read as the evidence of such witness,” and may be met by contradictory evidence from the opposite party. The law declares the effect of the agreement of the party objecting to the continuance and he must abide by it. The fact that opposing counsel want the jury to understand or be informed that the affidavit is not really the testimony of the witness, shows that it is expected such knowledge will destroy or *502impair its effect; There is no necessity in practice for the jury knowing anything else than that the matter set forth in the affidavit is that which could be proved by the witness in his deposition taken in regular form.
The case cited in.the opinion, I think, does not sustain the position, but rather leans against it. The remark, therefore, cf the court in the presence of the jury that the paper was not the deposition of the witness, and that it was only admitted to be what he would testify to at the trial if he were present, or that such witness would swear to the matter set out in the affidavit for a continuance if present, was improper, and for which the judgment should be reversed.