
    M’Donald vs. M’Donald, executor, &c.
    
    When a verdict is found by eleven jurors, and judgment given, this is such a final judgment as may be appealed from; it is not void, but erroneous.
    When judgment is given upon the finding of eleven jurors, and a general appeal is prayed, neither the circuit nor the supreme court can reverse for this defect, though it would be otherwise if an appeal in the nature of a writ of error had been taken.
    The words “if to be found,” used in the act of 1789, ch. 23, sec. Í, when speaking of witnesses to a will which is contested, mean if to be found by the officer in whose hand the process is placed; and the return of the officer, that the witness cannot be found, is evidence of that fact.
    When all the witnesses to a contested will cannot be found, Upon proof that some cannot be found, the will may be proved by those that can be found; and by other witnesses, as it may be required bylaw.
    This was a contested will. On the trial in the county court, the record shows, that the verdict was rendered in favor of the will, by eleven jurors only; upon which finding judgment was given. A general appeal was prayed and granted, and the cause taken to the circuit court. The circuit court refused to reverse the finding in the county court, because the verdict was rendered by eleven jurors; to which refusal, exception was filed. On the trial in the circuit court, it appeared that there were several witnesses to the will; some of them were not produced and examined, though they were not shown to be dead. To show that they could not be found, a subpoena issu* ed to summon them, and the return of the sheriff that they could not be found, was introduced and read to the jury. On the trial, the contesting party contended before the jury, that the will had not been proved in accordance with the acts of Assembly; that all the subscribing witnesses had not been produced, or shown to be dead. The court charged the jury, that when a will was contested, the act of Assembly required all the living witness* eS t0 Pro(^ucec^ ^ t0 that it did not appear but that in this case the subscribing witnesses not produced were living, and therefore, if to be found, must be produced. But the court said, unless they could be ' found, they were not to he produced; and that the meaning of the words, “if to be found,” in the act of 1789, ch. 23, sec. 1, meant, if to be found by the officer having the process of summons, and not, if to be found any where in the world; that if the officer returned on the subpcfena, that the witnesses could not be found, such return would be evidence of the fact that the witnesses could not be found, and would excuse the non-production. The jury found in favor of the will; a new trial being moved for, and. refused, the defendant appealed in error to this court.
   Green, J.

delivered the opinion of the court.

The first question is, whether this court can reverse the circuit court judgment, because from the record it appears that the verdict of the county court was found only by eleven jurors. Had the plaintiff in error taken an appeal in error from the judgment of the county court, this error would have been fatal; but he chose to take a broad appeal, and try the whole case de novo in the circuit court. When the cause was thus brought into the circuit court, it could not look into and adjudicate upon the errors of the county court, but its business was to try the case as though it had been originally there. In fact it was only a new trial of the case, and had the same effect as though the county court had set aside the verdict pronounced by the eleven jurors, and had proceeded to try the cause anew, by a competent jury. Nor can this court any more reverse for the imperfection of the jury in the county court, than it could have done had a new trial taken place there. But it is insisted, that because this verdict was defective, there was no such final disposition of the cause as would authorize the circuit court to .... . take jurisdiction. Although the verdict was defective, and for that reason the judgment upon it was erroneous, yet it was a final judgment. The cause was entirely disposed of in that court, and therefore the force of the argument is not perceived. We are of opinion, the circuit court, in its charge to the jury, gave a correct construction to the act of.1789, ch. 23, sec. 1, which requires a contested will to be proved by all the witnesses thereto, “if to be found.” It would be unreasonable to suppose that the Legislature intended that a party should search through distant foreign lands for a witness, and thereby produce delays, ruinous to the estate for which the contest was pending. “If to be found,” must, therefore, mean, if to be found by the officers having the process of subpoena to execute on him. Then there could be some certainty whether the witness could be found or not; the officer’s return being evidence of the fact. But if a party is to search foreign countries and other States, what evidence is to satisfy the court that the witness, although he had been sought for, might not yet be found. Upon the whole, we think there is no error in the record, and order the judgment to be affirmed.

Judgment affirmed.  