McFarlan et al. v. The People of the State of Illinois.

which sat in the case as the court of inquiry, and which as adjunct by courtesy. The law does not require an attestation by way of witness, but an official certificate of its having been entered into, and approved. 7 Dana, 243; 6 Mon. 43; 4 B. Mon. 418; 6 Blackf. 314; Noble v. People, 4 Gill's R. 434; Sans v. People, 3 Gill's 327; 2 Sup. U. S. Dig. 681, § 33. The recognizance itself must show the court where it was taken. 6 Yerg. 354.

W. K. PARISH, State's Attorney, and R. F. WINGATE, for the defendants in error.

The approval of the recognizance in this case, by two justices of the peace, will not vitiate the same, although one justice might have taken it. Are the cognizors prejudiced thereby? The useless shall not vitiate the useful.

The recognizance is witnessed by, or certified by the officers. taking the same. This is a substantial compliance with the statute. The recognizance was returned into court by officers duly authorized to take the same. The sci. fa. in this respect is

sufficient on demurrer. The State v. Cherry, 1 Meigs, 232; Suple

ment to 2 U. S. Dig. 684, § 98; Id. 681, § 142; Ross v. The State, 6 Blackf. 314; Starr v. Commonwealth, 7 Dana, 243; Commonwealth v. Kimberlain, 6 Monroe, 43; Commonwealth v. Miller, 4 B. Monroe, 418; Shattuck v. People, 4 Scam. 477. Execution may be awarded on a sci. fa. against those of the cognizors who have been served, or who enter their appearance, where the recognizance is joint and several, without a return of two "nihils" against the other cognizors or personal service on them. Sans v. People, 3 Gill, 327; Crisman v. People, Id. 351; Passfield v. People, Id. 406.

TREAT, C. J. Several questions arise on the demurrer to the scire facias.

First. It is contended, that the obligation set out in the scire facias is not a recognizance. It is in the form of a penal bond, with the condition of a recognizance. It was held, in Shattuck v. The People, 4 Scammon, 477, that such an obligation, under our statute, has the force and effect of a recognizance, and that

McFarlan et al. v. The People of the State of Illinois.

a scire facias may issue upon it as such. That decision fully disposes of this objection.

Second. It appears, from the scire facias, that the recognizance was entered into before two justices of the peace, and it is insisted that it is void for that reason, inasmuch as the charge of manslaughter was examinable by one justice. It is very true, that one justice had jurisdiction of the charge and might legally have taken the recognizance, but the obligation is none the less valid, because another justice was associated with him.

Third. It is objected, that the recognizance copied into the scire facias, does not appear on its face, to have been taken and approved by the justices, and by them certified into the Circuit Court. The scire facias, however, contains an express averment that the recognizance was entered into before, and approved by the justices, and was afterwards filed with the clerk of the Circuit Court, whereby it became a matter of record in that Court. This allegation is admitted by the demurrer to be true, and it is clearly sufficient to sustain the judgment. Under it, if put in issue, the people could have shown that the recognizance was taken and approved by the justices, and by them transmitted into the Circuit Court. The case of Noble v. The People, 4 Gilman, 433, does not lay down a contrary doctrine. In that case, the averment was wanting.

Fourth. It is also insisted, that the scire facias is defective in not averring that the justices had power and authority to take the recognizance. It does aver that the persons before whom the recognizance was acknowledged, were justices of the peace for the county in which it was taken. In our opinion, this allegation must be held sufficient. The statute confers power on justices of the peace, to take recognizances in all cases of bailable offences committed in their county. Their authority, in this respect, is general, as much so as that of the Circuit Courts. And to this extent, they act as courts of general jurisdiction. The rule, therefore, that presumptions are not to be indulged in favor of the proceedings of courts of limited jurisdiction, is not applicable. Where it appears that these officers have taken the recognizance of a party charged with the commission of a bailable offence in

McFarlan et al. v. The People of the State of Illinois.

their county, the presumption properly arises that they acted within the line of their duty and authority; in other words, that the charge was regularly preferred and examined, and the proper decision pronounced, before the recognizance was entered into. The case of the Commonwealth v. Kimberlain, 6 Monroe, 43, is in point. There, the scire facias recited that Kimberlain "appeared before Thomas M. Buckley and Reuben Samuel, two of the Commonwealth's justices of the peace for said county of Henry," and acknowledged, &c. In answer to the objection that it did not sufficiently appear that the recognizance was taken by persons having competent authority, the court said: "They are expressly stated to be justices; we are bound to notice the authority and jurisdiction conferred by law on the justices of the county; that they acted within the pale of their authority in taking a recognizance, is a presumption in law which will stand until the contrary is proved." The same principle is recognized in the Commonwealth v. Miller, 4 B. Monroe, 418, and Shattuck v. The People, supra.

Fifth. It is contended, that it was erroneous to enter judgment against two of the cognizors, before the other was brought into court; and the case of Alley v. The People, 1 Gilman, 109, is referred to in support of the position. It is enough to observe, that Alley v. The People, was expressly overruled by the cases of Sans v. The People, 3 Gilman, 327; Crisman v. The People, Ibid. 351, and Pasfield v. The People, Ibid. 406, in all of which the principle is settled, that on a scire facias upon a joint and several recognizance, where service is had on one or more of the cognizors, and a return of nihil as to the rest, execution may be awarded against those served with process. The recognizance in the present case is in terms joint and several.

Sixth. During the term at which the judgment was entered, the court directed the clerk to indorse the filing of the recognizance nunc pro tunc. He failed to comply with the order, and the court, at the succeeding term, directed him then to make the proper indorsement on the recognizance, which was done. These orders are now complained of, but without any good reason. They but required the clerk to do what he ought already to have done. The judgment is affirmed.

Rigg et al v. Wilton et al.

RACHAEL RIGG et al., Plaintiffs in Error, v. HARRY WILTON et al., Defendants in Error.

ERROR TO ST. CLAIR.

Where a statute is copied from one in another State, which has there received a con-
struction which is consistent with the spirit and policy of our laws, such construction
may with propriety be adopted by our courts.

On the trial of an issue out of Chancery arising under Revised Statutes, chap. 109,
sec. 6, the burden of proof is on the party affirming the execution and validity of
the will, and he has the right to open and conclude the argument of the cause.
Under such an issue, the party holding the affirmative, is bound to prove that the con-
tested paper is the last will and testament of the testator.
Notwithstanding the probate, the issue is to be submitted to the jury as a new and
original question, to be determined exclusively upon the evidence introduced before
them. The trial is de novo, and without regard to the fact, that the instrument has
been admitted to probate.

The certificate of the oaths of the attesting witnesses at the time of the probate, may
be offered in evidence by either party; but it is to receive such weight only, as the
jury may think it deserves, in connection with the other proof in the case.
The indispensable requisites of a will are that it must be signed by the testator, or by
some one in his presence and by his direction, and be attested in his presence by two
or more witnesses.

On the question of the sanity of the testator, no particular quantum of evidence is
necessary in order to sustain the validity of the will, upon the trial of an issue out of
Chancery, under the statute; but the jury should determine the facts upon the
weight of evidence, as in other cases. It is not essential that the subscribing wit-
nesses should be called, or that when called they should concur in their testimony;
other witnesses may be examined, even to contradict the subscribing witnesses.

THE statement of this case is contained in the opinion of the Court. This cause was heard before Koerner, Justice, and a jury, at April Term, 1848, of St. Clair Circuit Court. The jury found for the defendants, declaring that the will was the will of Clement Rigg. The errors assigned were the refusal of the Circuit Court to give the instructions asked for by the plaintiff's in error, and the refusal of a new trial.

W. H. UNDERWOOD, for plaintiffs in error.

In trials before a Probate Court, and in appeals therefrom, two subscribing witnesses must concur in their opinion of the

Rigg et al. v. Wilton et al.

sound mind and memory of the testator. Walker v. Walker, 2 Scam. 294. Or if probate is disallowed, on appeal, other evidence of sanity may be introduced. Revised Laws, 596. Lewis v. Morris, 1 Dallas, 308.

On such appeal, the executor has the affirmative. Brooks v. Barrett, 7 Pick. 98. And when defendant proves insanity of testator before making will, the presumption is, that such state of mind continued to the time of making the will, unless the contrary is established. 2 Greenleaf's Ev. § 689.

On a feigned issue, two witnesses must each testify to all the facts necessary to establish the will. 2 Daniel's Ch. Prac. 1019, 1021. Burwell v. Corbin, 1 Rand. R. 131, 141. Hock v. Hock, 6 Serg. & Rawle, 47.

G. KOERNER, for defendants in error.

2 Starkie on Ev. 1266, note (h), 126, note (m).

TREAT, C. J. This was a feigned issue out of Chancery to determine the question, whether a certain paper was the last will and testament of Clement Rigg. The plaintiffs alleged that it was not his last will and testament; the defendants affirmed that it was. On the trial, the defendants were allowed to open and conclude the case; and both of the subscribing witnesses to the will were introduced, and testimony was offered tending to show that Rigg was of unsound mind and memory at the time of the execution thereof. The plaintiffs asked the court to instruct the jury: First, "That proof by one subscribing witness, that the testator executed said will, and that said witness believes the testator to be of sound mind and memory at the time, is not sufficient to establish said will." Second, "That the sanity of the testator at the time of the execution of said paper writing, is an affirmative fact, to be established by those affirming the validity of said will, and who hold the opening and conclusion of the case before the jury." Third, "That unless the jury are satisfied from the evidence, that the sound mind and memory of the said Clement Rigg, at the time of the execution of the said paper writing, have been established, either