
    * Moses Hubbard, Appellant from a Decree of the Probate Court, versus Joseph Hubbard, Executor.
    An appeal from a decree of the Court of Probate must regularly be made to the next term of this Court, although by law one judge is authorized to hold such term.
    Of the pleadings where the Court direct an issue to the country, to ascertain the sanity of a testator at the time of making his will.
    This appeal was claimed and allowed in September, 1809, and was made to, and entered at, the then next term of this Court, viz., October term, 1809.
    
      Mellen, for the appellee,
    objected that one justice of the court being authorized by statute to hold the October term, and three justices at least being necessary to constitute a supreme court of probate, the appeal was irregularly made, and ought to have been to the present term, notwithstanding the intervention of the last term.
   By the Court.

The appeal was rightly made. Such has been the uniform practice under the statute; and three justices might have been present at the last term, in which case they would have taken cognizance of this appeal, as a supreme court of probate.

The principal question in this case was upon the sanity of the appellee’s testator. The pleadings were as follows: —

“ And now, the Court here having ordered an issue to the country, the said Moses comes and defends, &c., when, &c.. and says that the decree aforesaid ought not to be affirmed, because he says that the said Joshua, deceased, at the time of signing and publishing the instrument aforesaid, purporting to be his last will and testament, was not of sane mind ; and this he is ready to verify ; wherefore he prays judgment, that the said decree may be reversed, and for his costs.”

King and Thomas for the appellant.

Mellen and Hubbard for the appellee.

And the said Joseph, the appellee, says that the said Joshua, deceased, at the time aforesaid, was of a sane mind, and this he prays may be inquired of by the country.”

“ And the said Moses likewise.”  