delivered the opinion of the Court:
This was a petition to the County Court of Franklin to set aside the probate of William Jeffreys’s will and re-examine the same for the several grounds mentioned in the petition. The practice in cases of this kind has been settled by this Court in the case of Moss and Wife v. Vincent, an affidavit must be annexed to the petition “verifying the facts on which it is sought to set aside the probate of a will.” *635It appears that the accompanying document alleged by the petitioners to be an affidavit, was sworn to before William Boylan, esq. one of the justices of the peace in and for the county of Wake. We are all of opinion, that the deponents could not be convicted of perjury, provided the contents of said doccument were false, as the Justice of Wake county had no legal authority to administer an oath to any person to prove the contents of an affidavit which was to be made use of in the County Court of Franklin.
The Court are of opinion, that as this petition stands without any accompanying affidavit, it must be dismissed.