Clark v. Clark
Supreme Court of New Hampshire
Probate Appeal, from the disallowance of a claim against the decedent’s estate. After the appeal was taken the defendant summoned the plaintiff to give his deposition. Before it was taken counsel agreed to waive the defendant’s obligation to file the deposition, as required by section 11, chapter 225, Public Statutes.
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Probate Appeal, from the disallowance of a claim against the decedent’s estate. After the appeal was taken the defendant summoned the plaintiff to give his deposition. Before it was taken counsel agreed to waive the defendant’s obligation to file the deposition, as required by section 11, chapter 225, Public Statutes. The defendant intended to avoid the right of the plaintiff to use the deposition at the trial by means of this agreement, but the plaintiff had no such understanding. At the trial the defendant did not elect to become a witness. The plaintiff was excluded from testifying…
1Opinion of the CourtPeaslee, J.
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…
2Cases cited1 opinion
- Palmer v. BassSupreme Court of New Hampshire · 1897
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