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 *325the 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.”

“ 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.”