The indisposition of a witness, whose deposition has been taken de bene esse, and was now offered to be read, cannot be proved by the oath of the party producing it.
HAYWOOD, J.
(who gave the opinion of the Court): I cannot say, because I do not remember how the practice hath been, but surely, upon principle, so material a fact as the indisposition of the witness, upon which depends the reading the deposition, and perhaps upon that the fate of the cause should be proven by some other person than the plaintiff, who may be greatly interested in having the deposition (228) read, rather than the witness examined and cross-examined in court. That the indisposition or death of the witness is to be proven by others is strongly implied in the words used in Fry v. Wood, 1 Atk., 445; and in 1 Mo., 282, 283, the falling sick of the witness was proved by an indifferent person. In the present case there was no one in court who could prove the indisposition of the witness, and the deposition was rejected, though it was afterwards read, by consent of parties.
See Anonymous, 3 N.C. 74.