By taking the plaintiff's deposition, the defendant made the plaintiff a witness in the case. A person giving a deposition is a witness, and his answers to the questions put to him are testimony. The act of the administrator in thus calling the adverse party to testify in the cause was an election on his part to testify generally. The finding in the case that there was no such election at the time of the trial is a conclusion of law and not controlling here. Palmer v. Bass, 69 N.H. 300. Having so elected, he could not withdraw his election to the manifest detriment of his opponent.
The agreement made by counsel before the deposition was taken does not affect the result. It merely relieved the administrator from the duty to file the deposition at once. P. S., c. 225, s. 11. It did not take from the deposition its character as evidence, but merely left it to be dealt with like a deposition of one not a party.
The understanding of the administrator's counsel, that by this agreement he had avoided the usual legal consequences of calling the adverse party as a witness, is immaterial. The opposing counsel had no such understanding, and the agreement of the parties does not go to such an extent. The plaintiff was a competent witness for himself at the trial.
Exception sustained.
All concurred. *Page 432