Newbern,

September Term, 1795.

#### WILLIS versus BROWN’s EXECUTORS.

Davie for the plaintiff, moved that a commission de bene esse might be read upon the plaintiff's affidavit, that the deponent was sick and unable to attend.

The defendant objected to this: and

By the Court,

Williams, J. and Haywood, J.

A party cannot entitle himself, by his own affidavit, to introduce this weaker kind of evidence. The disability of the deponent to attend the Court must be proved by indifferent testimony.

And the deposition was set aside.