Pleas in abatement to the jurisdiction are to be filed within the two first days of the term at which the action is entered.
The plaintiffs, having obtained judgment in the court below, an appeal was taken, the action entered in this court and continued several terms, when it was tried by the jury and a verdict found in favor of the defendants. After the *41verdict, and after several motions for a new trial by the plaintiff’s counsel, had been made and overruled, a motion to dismiss, on account of defects in the recognizance, was filed, which, being overruled, exceptions to this ruling of the presiding justice were duly alleged.
The record of the magistrate shows that a recognizance was entered into, and that an appeal was duly taken.
The recognizance taken before the magistrate on an appeal, must bo returned to the court to which the appeal is taken. It is there entered of record, and becomes the basis of further proceedings therein. “ The recognizance should have been returned to the Court of Common Pleas, to which court the appeal was made, and there filed as a record of that court, upon which the action should have been brought.” Bridge v. Ford, 7 Mass., 209; Bridge v. Ford, 4 Mass., 641; Dodge v. Kellock, 10 Maine R., 266.
No recognizance seems to have been returned with the papers when the appeal was entered. After the motion to dismiss was made, the recognizance taken by the magistrate was returned, and, by leave of court, entered of record. It is in due form, and purports to have been legally taken. As soon as the objection was taken that there was no recognizance, it was at once removed by the production of what purports to be, and in the entire absence of legal evidence to the contrary must be regarded as the original. The plaintiffs have been in no respect injured by reason of its not having been sooner filed.
The records of the court are not completed in respect to any action till final judgment is rendered. It will be the duty of the court to see that the recognizance in this case is entered of record.
The defendants, among other papers, at the entry of the action, filed “ a copy of the recognizance,” duly certified by the magistrate to be a copy of record. This copy is defective, and variant from the requirements of the statute. If the copy had shown the recognizance to have been ever so formal, it still should not have been returned to this court, *42nor could it be entered of record here. Neither is a copy admissible to contradict an original record, or to show it defective or informal. The copy of the recognizance can therefore legally have no bearing in the question before us.
The recognizance having, by leave of court, been filed, and thus become a part of the records of the court, and being in due form, shows that the court had jurisdiction in fact, and having jurisdiction, no reason is perceived for disturbing the proceedings.
The cases cited, and relied upon by the learned counsel for the plaintiff, are not in point. In Hilton v. Longley, 30 Maine R., 220, there was no recognizance taken. In French v. Snell, 37 Maine R., the original recognizance was fatally defective. In Dolloff v. Hartwell, 38 Maine R., 55, there was no recognizance taken.
No case has been cited to show that a recognizance may not be filed after the first term, by leave of court, or that, if filed, it may be contradicted or impeached by what purports to be a copy of the same.
This is a court of general jurisdiction. It is not necessary, to show jurisdiction, for it will be presumed till the contrary appears. Wright v. Douglas, 10 Barb., 97.
The motion in this case may, perhaps, be regarded as in arrest of judgment. “ Judgment will be arrested if it appear that there was no writ or process to give the court jurisdiction, but that proceedings have been carried on by consent. If an action, local in its nature, be sued in the wrong county} judgment will be arrested.” Howe’s Prac., 535; 1 Sell. R., 501; 7 Mass., 353. So a motion to dismiss for want of jurisdiction was treated as a motion to arrest judgment, and it was arrested in Com. v. Emery, 11 Cush., 406.
But if this be a motion in arrest of judgment, then the R. S., ch. 115, s. 80, by which it is enacted that “ no motion in arrest of judgment shall be sustained in the Supreme Judicial Court or District Court in any civil action,” expressly prohibits its allowance, and leaves the party to his remedy by •writ of error, as in Jordan v. Dennis, 7 Met. R., 590.
*43In Massachusetts, it is true, the motion to dismiss for want of jurisdiction has been repeatedly sustained after verdict, as in King v. Denny, 11 Cush. R., 218, where an action of replevin for goods of less value than twenty dollars, was dismissed after verdict for this cause. In Elder v. Dwight Man. Co., 4 Gray, 201, the motion to dismiss was made upon appeal from a magistrate, and sustained. In that state the statute prohibiting motions in arrest of judgment expressly excepts objections to the jurisdiction, and this, says Siiaw, C. J., in the case last cited, “ carries a strong implication that all such objections may be taken at any time before or even after judgment.” The statute of this state is most general, and has no exception as to jurisdiction, as is the case in Massachusetts.
The objections taken cannot prevail. The plaintiff omitted or neglected to take exceptions to the defendants’ standing in court, when, if not removed, they would have been available, and submitted to the jurisdiction of this court until after a verdict was rendered against him, and after his repeated motions for a new trial were overruled as without legal foundation. He cannot now be permitted to arrest the judgment of this court, especially where it is manifest it had jurisdiction.
Exceptions overruled.
Goodenow, J.Any party, aggrieved by the judgment of a justice, may appeal, &c. E. S. ch. 116, s. 9.
Before such appeal is allowed, the appellant shall recognize with sufficient surety or sureties to the adverse party, if required by him, in a reasonable sum, with condition to prosecute his appeal with effect, &g. S. 10.
The record shows that the appeal was allowed. It does not show that the adverse party required a recognizance. Ei incumb it probatio qui discit, •non que negat. There would be no reason for a recognizance without sureties. It would not add to the security of the appellee. A recognizance is not made a condition precedent to an appeal, unless it is *44claimed or required by the appellee, in cases before justices of the peace. There has been no trial by jury. The right of appeal should not be unnecessarily burthened. The punctuation deserves marked attention.
In appeals from the District Court to the Supreme Judicial Court, a recognizance was a condition precedent. R. S., ch. 97, s. 14. It did not depend upon its being required by the adverse party. So of prior statutes.
In Dolloff v. Hartwell and al., 38 Maine R., 54, this distinction does not seem to have been noticed by counsel or the court. The opinion is very brief, and refers to Gammon v. Chandler, 30 Maine R., 54, which simply decides, that the record of the justice that there was no appeal, was conclusive. And also to Hilton v. Longley, 30 Maine R., 220, which was an appeal from the District Court, and not from a justice of the peace, as in this case.
By statute of Mass., March 11, 1784, vol. 1, p. 149, the party aggrieved by the judgment of a justice of the peace, in a civil action, could appeal; but before his appeal could be allowed, he was obliged absolutely to recognize, &c.
In criminal cases it was the same.
Mass. Laws, vol. 1, p. 160, s. 3. The cases decided under these provisions are inapplicable to the present case. The presumption is, that every man does his duty, when acting officially and under oath, till the contrary appears. Recognizances are only made necessary by statutes. A defective recognizance, where none is required, would not destroy the appeal. It would not deprive this court of jurisdiction in the case, after it had once passed from the jurisdiction of the magistrate, and had been duly entered here.
If there had been an error or omission in the record of the justice, such as omitting to insert that a recognizance was required by the appellee, the exception should have been taken at the first term. There will be no error apparent on the face of the record, if this court should render judgment in the case; as it will not appear that a recognizance was required. If the party did actually recognize be*45fore the appeal was allowed, the appeal was legal. The filing the recognizance in this court is not a condition precedent.
The defect in the recognizance is not that it is deficient, but that there is surplusage in the condition, requiring more of the defendants than the law requires. This was no doubt an error of the magistrate in a mere matter of form. The plaintiff had the security of the whole town without a recognizance, and there was no good reason why he should have required sureties. When a criminal is required to furnish a recognizance to do what the law does not require him to do, he may well object that he was in duress pro tanto. A recognizance cannot be waived in a criminal case. It may be otherwise in civil cases, for very good reasons; but “ sufficient unto the day,” &c.
The court had jurisdiction of the subject matter in this case, if it was legally appealed and taken out of the jurisdiction of the justice; and in my opinion the justice should have an opportunity to correct his record, according to the truths of the case, if it needs any correction. The defendants are not in fault; the plaintiff is not injured; he has taken his chance, had a fair trial, and the result upon the merits is against him. If the defendants cannot now have judgment on the verdict, I shall lament the magical force of the merest forms. R. S., ch. 97, s. 14, 17.