Newbern,

March Term, 1795.

#### HARVEY versus JONES & BARFIELD.

CASE on a promissory note. The plaintiff proved that the subscribing witness was not in the state, and offered to give evidence as to his hand-writing.

But it appearing that the witness resided in the state, and was occasionally absent:

The Court,

Ashe, J. and Williams, J.

doubted of the propriety of admitting proof the hand-writing: saying testimony of that witness might be obtained at another term—that a commission might be taken and his deposition procured while he was in the state, and read, if he happened to be abroad at the time of trial.

They recommended it to the counsel of both parties to consent to a juror being drawn,

*42 Martin for the plaintiff. Badger for the defendants.

And on their agreeing thereto, it was accordingly done.