
    *William Brown, et al., ads. Gervis Gibson, et ux.
    
    Probate of a will in common form may be revoked either on a suit by citation, or on appeal at any time within thirty years, 
    
    The ordinary has the power to revoke a probate made by his predecessor in office.
    It is exclusively the duty of the executor to prove the will and. defend any contest about it, ut semble.
    
    The decrees of a Court of Ordinary, on a matter within its jurisdiction, are conclusive until reversed. 
    
    If the question of damages is not put in issue by the pleadings, damages cannot be made the subject of the verdict; and in such case, if damages be given, a new trial will be granted, unless the plaintiff agree to release them.
    Where a defendant sets up a will, it is incumbent on him to prove it; and where it relates to lands, he must prove it de novo in the Court of Common, Pleas, although probate has been granted.
    Tried before Mr. Justice Johnson. This was an application to the Court for a writ of partition, to make a distribution of the real and personal estate of the deceased, Hugh M’Donald, agreeably to the Act of 1791.
    The defendants opposed this application, and set up a- will made by the deceased. It appeared that this will had been proven in the common form, and allowed by Joseph Brown, Esq., the late Ordinary of Chester district, in 1814.
    In reply to this, the plaintiffs produced a decree of the present ordinary, dated in August, 1818, which recites a citation issued at the instance of the plaintiffs, requiring the executor to appear before him, to prove the will in solemn form, and that the executor did attend.
    This decree, in effect, operated as a revocation of the probate made in com
      
      mon form, and disallowed the will, on account of the insanity of the deceased at the time of its execution,
    An objection was made to the admissibility of this decree, which was overruled, and the case went to the jury, who found for the plaintiffs, and $13, damages.
    Several grounds, arising out of the provisions of the will, and the state of the pleadings, were made the "*basis of a motion for a new trial; but from the view taken of the case, they have become unimportant, and it is not, therefore necessary to state them, or the facts out of which they arise.
    Those remaining involve the following questions :
    1. Whether the present ordinary had the power to revoke a probate made by his predecessor.
    2. Whether he could do so, without summoning all the parties interested in the estate, and whether the revocation was not void without it.
    3. Whether the plaintiffs were entitled to recover damages in this action.
    An exception was also taken to the charge of the presiding Judge; because he instructed the jury that the defence set up could not avail the defendant, as to the real estate.
    
      
      
         4 Burns’ Eccles. Law, 207. Roberts on Wills, 194. Grimke’s Law of Executors, 173. Sheppard’s Touchstone, 499.
    
    
      
      
        Gahan v. Maingay, Irish Term Rep. 51, 73. Sawyers v. Shannon and* Boling, 1 Tennessee Rep. 467. Grant v. Chamberlain, 4 Mass. T. Rep. 613. Vandenheuvel v. United Ins. Comp. 2 Caine’s Cas. 255; and the following case has been since decided in this court:
      Starke v. Woodward.
      
      
        An existing judgment or decree of a contempt of court upon a matter within its jurisdiction, is conclusive of the rights of the parties, on the same point, in any other court of concurrent jurisdiction; nor do the decrees of the Court of Equity form an exception to the general rule.
      
      This was an action of trover, for five negroes; tried before Mr. Justice Nott, at a special court, held at Eairfield, August, 1819.
      It appeared in evidence, that the defendant had married plaintiff’s daughter. That some short time after the marriage, plaintiff gave Ms daughter several negroes, of wMch, those in question were a part. Defendant’s wife died within about two years after the marriage, without issue. After her death, plaintiff claimed the negroes, alleging, that by a deed of gift, made to Ms daughter, a reversionary interest was reserved, in case she should die without issue; and, as that contingency now happened, the negroes belonged to him. The defendant refused to deliver them up. The plaintiff had obtained possession of four, and this action was brought to recover the value of the five which defendant detained. After this action was commenced, the defendant filed a bill of injunction in the Court of Equity, alleging, that the deed of gift had been executed after the gift was made, and the property delivered; and was therefore a fraud on Ms marital rights, and void. The object of the bill was, to obtain a discovery from the plaintiff, of the time when the deed was executed; it also prayed that he might be decreed to deliver up the four negroes of which he had obtained possession, and that complainant might be confirmed and quieted in the right and possession of those which he retained. Upon hearing the case, the Court of Equity decreed, that the complainant had no right to any of the property in question, and dismissed the bill.
      The plaintiff then proceeded with his action at law, and the only question made, was, whether the decree of the Court of Equity was final and conclusive, as to the right of property.
      The presiding judge held that it was so, and refused to let the defendant introduce any testimony to controvert it.
      The jury found a verdict for the plaintiff; and this was a motion for a new trial, on the ground of misdirection in the Court below.
      
        The opinion of the Court was delivered hy Mr. Justice Nott.
      I consider it now a well settled principle of law, that an existing judgment or decree of a competent court, upon a matter within its jurisdiction, is conclusive of tho rights of the parties, on the same point, in any other court, of concurrent jurisdiction.
      The determination of the great question which has heen so much agitated, and which became so interesting during the late European war, with regard to the conclusiveness of the sentences of foreign Courts of Admiralty, ought to be decisive of this case. It has been so long settled, in England, that the sentence of a foreign Court of Admiralty is conclusive as to all matters which it professes to decide, even against the underwriters, who are not parties to the original suit, * that it is now not permitted to be questioned: and at a time when the judges of England were so embittered against the French courts as to pronounce them pirates and robbers, proceeding upon Algerine, and worse than Algerine principles, they respected the decrees of those same courts, and held them conclusive. (Geiger and Aguilar, 7 D. & E., 692; Pollard and Bell, 8 do., 436.) The same principle has been established by the Supreme Court of the United States. And it is considered so well settled in this State, that in a late ease, when the question occurred, the court would not permit it to be argued, (L. Groning v. U. Insurance Company.)
      But where the question has happened between the same parties, I have never known it doubted. In the Duchess of Kingston’s case, (Harg. St. Tr. 11 vol. 261-2,) Lord Chief Justice De Grey, who delivered the opinion of all the judges, Says, “the judgment of a court of concurrent jurisdiction directly upon the point, is, as a plea in bar, or as evidence, conclusive between the same parties upon the same matter directly in question in another court.” In the case of Roberts and Fortune (cited in Gahan and Maingay, Irish Term Reports, 40), Chief Justice Lee observes, that courts of law pay such deference to the judgments of each other in matters within their jurisdiction, that the first determination, by a proper authority, ought to prevail. The case of Gahan v. Maingay (Irish Term Reports, 1), is a case of high authority. It was determined in the Exchequer Chamber of Ireland, before all the judges, and contains all the law on this subject. Lord Chancellor Fija Gibbon observes, “ sitting in a court of law, I am not at liberty to enter into an examination of the justice or injustice of any judgment of a court of competent jurisdiction, unless it comes before me by a writ of error. All parties to such a judgment are bound by it, until it is reversed by a court having competent authority to review it. ’ ’
      These authorities go most satisfactorily to support the decision in this case, unless the decrees of the Court of Equity form an exception to the general rule. But I am not aware of any such distinction; indeed, the principle applies with peculiar force to this case. The defendant availed himself of the authority of the Court of Equity to withdraw his cause from this court. It has therefore been tried by a tribunal of his own choosing. If he had applied to that court merely for a discovery (the only ground perhaps which could have given it jurisdiction), it would have been no bar to the trial in this court; but having given the court jurisdiction, he chose to submit his whole case to its decision, and must be bound by the decree.
      The motion must therefore be refused.
      Justices Colcock, Gantt, Johnson and Richardson, concurred.
      Clegg, for the motion.
      Clarke, solicitor, and Blanding, contra. R.
      Post. 437, 541, notes; 2 McM. 298; 8 Rich. 370; 7 Rich. 30; 6 Rich. 336. Samuel v. Dinkins, 11 Rich.
    
   The opinion of the Court was delivered by

Johnson, J.

1. The probate of a will in common form, may be revoked, either on a suit by citation, or on appeal; Toller’s Law of Executors, 18; and that at any time within thirty years. Tb. 16. Cockb. Clerk’s Assist. 132. The circumstance, that the probate in this case was granted by the predecessor of the present ordinary, who took upon himself to revoke it, cannot avail the defendants ; because the Court is the same, possesses the same power and jurisdiction in the hands of the present incumbent, as it did in the hands of his predecessor; and the mere fact of a judicial power passing from the hands of one person to another, cannot have the effect of changing the legal rights of the parties.

2. It is said, that after a will has been proven in form of law, an executor cannot be again required to prove it. Clerk’s Assistant, 133. Reasoning by analogy, it would seem, that it was exclusively the duty of the executor to prove it, and that it was equally incumbent on him to defend any contest about it. Besides, from the nature of the trust created, by the office of executor, it becomes exclusively his duty ; and *in this country the range of interest, in the distribution of intestates’ estates, is so extensive, that it might become difficult, if not impossible, for the ordinary, or any other individual, to ascertain who were the persons interested, and thus every order made by the Court of ordinary might become a perpetual source of litigation. There is also another view of this subject. ■ The decree of the Court of Ordinary, revoking the probate of the will, was the judicial act of a court possessing jurisdiction over the subject matter of dispute; and the law holds the exercise of this right so sacred, that no evidence will be permitted to control it, in relation to the subject of dispute, so long as it remains unreversed by the order of a superior tribunal ; Toller’s Law of Executors, 16 ; and this can only be done on an appeal to the Court of Common Pleas, in the manner pointed out by the Act of Assembly.

3. The question of damages was not put in issue by the pleadings, and could not, therefore, be properly the subject of the verdict; but this of itself is not necessarily a sufficient ground for a new trial, as the verdict so far may be considered as surplusage.

Gist, for the motion. Glarlce, Solicitor, contra.

The exception taken to the charge to the jury cannot avail the defendants. The defendants themselves set up the will, and it was incumbent on them to prove it, and they offered no other evidence than the probate, and whether this, probate had been revoked or not, was wholly immaterial, as relates to the lands, as it was incumbent on them to prove it on the trial de novo.

I am of opinion that a new trial ought to be granted on the third ground, in relation to the damages, unless the plaintiffs release those damages.

Colcook, Nott, Cheves, and Gantt, JJ., concurred. 
      
       See Act of 1839, 11 Stat. 41, \ 11.
     
      
       See 1 Rich. 569 ; 6 Rich. 477; Act of 1858, 12 Stat. 701, l 3.
     
      
       S. C. 259, Supra.
     
      
      
        Street v. Aug. Ins. Co.
      
     
      
       5 Rich., 263.
     