STORY, Circuit Justice
(after stating the pleadings). The question is, whether this plea, as pleaded, is a good bar to the present bill. It is argued on the part of the defendant in the affirmative on various grounds, which I will, in the course of this opinion, distinctly consider. It is to be recollected, that the proceedings before the probate court were not between the same parties, as in the present; there was a joinder of John Mowry with the present plaintiff, and unless in probate proceedings the parties are considered as prosecuting severally and for their several interests, as well as jointly, according to the course of the civil law, there would be a difficulty in sustaining the conclusiveuess of the decree of the probate court upon technical principles, even supposing such decree to purport all that the defendant now contends for; for such a decree in general, would not only bind parties and privies, and the present case would not be between the same parties. But waiving all controversy on this point, let us now proceed to the consideration of the legal effect of the decree, supposing it in fact to have been made between the same parties. The decree of the supreme court of probate purports, on the face of it, to be, a simple reversal of the decree of the inferior court, and a remitter of the cause to that court for further proceedings. It does not therefore assume to make any conclusive or final decision on any rights or interests of the parties, but leaves those rights and interests precisely as they were before the original de-crée was made, unless by intendment of law a different result is to be attributed to such a [745] decree. At common law, if a plaintiff obtain a judgment in an inferior tribunal, which is reversed in the appellate court, it is very clear, that the reversal operates no further, than to nullify the original judgment. In ■other respects, the parties are^ precisely in the same situation, as to their rights and remedies touching the matter in controversy, ns if no such judgment had ever existed. If this case then were to be tried by the common law, the defendant’s counsel could not sustain their objection. Upon what principles is a simple reversal of a probate decree to be held to have a more extensive operation?
It is argued, that the reversal in this case must have been upon the merits of the controversy between the parties, for all or some of the reasons assigned in the reasons of appeal, and therefore conclusive upon the parties, as the sentence of a court of competent jurisdiction upon the identical questions now before this court. It is difficult to perceive on what principles of law this argument is founded, and no authority in point has been adduced. The general doctrine is laid down with admirable clearness in • the Duchess of Kingston’s Case, 20 State Tr. 355, Hale, Hist. C. Law, by Runnington, note C, p. 39, by the lord chief justice of the common pleas, in delivering the opinion of all the judges. He says: “Prom the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true: — First, that the judgment of a court of competent jurisdiction, directly upon the point, is, as a plea, a bar, or, as evidence, conclusive between the same parties, upon the same matter, directly in question in another court. Secondly, that the judgment of a court of exclusive jurisdiction, directly upon the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another court for a different purpose. But neither the judgment of a concurrent or exclusive jurisdiction is evidence of any matter-, which came collaterally in question, though within their jurisdiction, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment.” See Hibshman v. Dulleban, 4 Watts, 183, per Gibson, C. J.; Arnold v. Arnold, 17 Pick. 7-14; 1 Phil. Ev. (Am. Ed. 1839), p. 321, note 557.
Now in the probate decree before the court, there is no decision of the court directly upon any point of fact or of law; and upon what grounds the decree itself was founded is no where stated, and cannot be collected by argument or inference; and even if it could, we are informed from the highest authority, that it would not be conclusive in another suit. The argument too proceeds upon a supposition,- that in probate appeals the court are confined to the reasons of appeal, and cannot decree aliunde. But the statute of Massachusetts of the 12th of March, 1784, c. 46 (1 Mass. Daws, 155), contains no such limitation; and therefore, upon general principles, applicable to appeals according to the course of the civil and ecclesiastical law, the whole cause stands de novo in the appellate court, and may be decided upon, unaffected by the- preceding sentence. But if it were otherwise, the case would present intrinsic difficulty, for it would still be uncertain, what was the particular reason, upon which the reversal proceeded; and some at least of the reasons would seem in the nature only of temporary bars. Besides, there may be errors on the face of the decree, or the proceedings, untouched in the reasons of appeal, which may well authorize a simple reversal; yet the argument assumes, that the court were bound to adjudge between the parties, as to the merits of the appeal, in the manner by them stated, notwithstanding the most unquestionable errors.
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STORY, Circuit Justice
(after stating the pleadings). The question is, whether this plea, as pleaded, is a good bar to the present bill. It is argued on the part of the defendant in the affirmative on various grounds, which I will, in the course of this opinion, distinctly consider. It is to be recollected, that the proceedings before the probate court were not between the same parties, as in the present; there was a joinder of John Mowry with the present plaintiff, and unless in probate proceedings the parties are considered as prosecuting severally and for their several interests, as well as jointly, according to the course of the civil law, there would be a difficulty in sustaining the conclusiveuess of the decree of the probate court upon technical principles, even supposing such decree to purport all that the defendant now contends for; for such a decree in general, would not only bind parties and privies, and the present case would not be between the same parties. But waiving all controversy on this point, let us now proceed to the consideration of the legal effect of the decree, supposing it in fact to have been made between the same parties. The decree of the supreme court of probate purports, on the face of it, to be, a simple reversal of the decree of the inferior court, and a remitter of the cause to that court for further proceedings. It does not therefore assume to make any conclusive or final decision on any rights or interests of the parties, but leaves those rights and interests precisely as they were before the original de-crée was made, unless by intendment of law a different result is to be attributed to such a [745] decree. At common law, if a plaintiff obtain a judgment in an inferior tribunal, which is reversed in the appellate court, it is very clear, that the reversal operates no further, than to nullify the original judgment. In ■other respects, the parties are^ precisely in the same situation, as to their rights and remedies touching the matter in controversy, ns if no such judgment had ever existed. If this case then were to be tried by the common law, the defendant’s counsel could not sustain their objection. Upon what principles is a simple reversal of a probate decree to be held to have a more extensive operation?
It is argued, that the reversal in this case must have been upon the merits of the controversy between the parties, for all or some of the reasons assigned in the reasons of appeal, and therefore conclusive upon the parties, as the sentence of a court of competent jurisdiction upon the identical questions now before this court. It is difficult to perceive on what principles of law this argument is founded, and no authority in point has been adduced. The general doctrine is laid down with admirable clearness in • the Duchess of Kingston’s Case, 20 State Tr. 355, Hale, Hist. C. Law, by Runnington, note C, p. 39, by the lord chief justice of the common pleas, in delivering the opinion of all the judges. He says: “Prom the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true: — First, that the judgment of a court of competent jurisdiction, directly upon the point, is, as a plea, a bar, or, as evidence, conclusive between the same parties, upon the same matter, directly in question in another court. Secondly, that the judgment of a court of exclusive jurisdiction, directly upon the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another court for a different purpose. But neither the judgment of a concurrent or exclusive jurisdiction is evidence of any matter-, which came collaterally in question, though within their jurisdiction, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment.” See Hibshman v. Dulleban, 4 Watts, 183, per Gibson, C. J.; Arnold v. Arnold, 17 Pick. 7-14; 1 Phil. Ev. (Am. Ed. 1839), p. 321, note 557.
Now in the probate decree before the court, there is no decision of the court directly upon any point of fact or of law; and upon what grounds the decree itself was founded is no where stated, and cannot be collected by argument or inference; and even if it could, we are informed from the highest authority, that it would not be conclusive in another suit. The argument too proceeds upon a supposition,- that in probate appeals the court are confined to the reasons of appeal, and cannot decree aliunde. But the statute of Massachusetts of the 12th of March, 1784, c. 46 (1 Mass. Daws, 155), contains no such limitation; and therefore, upon general principles, applicable to appeals according to the course of the civil and ecclesiastical law, the whole cause stands de novo in the appellate court, and may be decided upon, unaffected by the- preceding sentence. But if it were otherwise, the case would present intrinsic difficulty, for it would still be uncertain, what was the particular reason, upon which the reversal proceeded; and some at least of the reasons would seem in the nature only of temporary bars. Besides, there may be errors on the face of the decree, or the proceedings, untouched in the reasons of appeal, which may well authorize a simple reversal; yet the argument assumes, that the court were bound to adjudge between the parties, as to the merits of the appeal, in the manner by them stated, notwithstanding the most unquestionable errors.
Another fatal objection to the argument is, that it attributes to a mere reversal of a decree all the legal efficacy of a subsisting decree upon the merits. It is in general true, that a judgment or decree upon the merits of any cause of action is conclusive as to the rights of the same parties, while the judgment or decree remains in force; and if the same judgment or decree find any particular fact or issue directly, the same operates by way of estoppel conclusively upon the parties, while the record is in force. But a reversal, with few exceptions, affirms nothing but its own correctness. It simply nullifies the former judgment or decree, and declares that it shall henceforth be deemed void. It decides nothing upon the rights of the parties; but confines itself to the adjudication, that what has been done shall have no legal effect. To give it a more extensive operation, either as a bar or as an estoppel, it is necessary to show, that it directly affirms or denies some distinct fact in issue. There is no pretence, that the present decree, on the face of it, does either. It is further argued, that if the reversal be not a conclusive bar by its intrinsic force, it operates so indirectly, inasmuch as the plaintiff is estopped, by her election to proceed in the probate court, from pursuing any remedy elsewhere. I know of no such estoppel in this case. In general, the pursuit of a remedy at law, which has become fruitless, is no bar to the pursuit of a remedy in equity for the same subject matter. So far from it, that in many instances, the whole equity grows out of the incompetency of the law to afford any adequate relief. Much less is it true, that an election to proceed in one court of competent jurisdiction, either of law or equity, where the suit is abandoned, operates as an estoppel to another suit in any other competent court. It is further argued, that the present bill ought not to be sustained, because the original suit is still pending in the probate court and unde[746] termined, and to assume jurisdiction would be to oust that court of its concurrent cognizance of the cause. Admitting that on a demurrer to a plea in bar like the present, such a consideration could properly arise (which in point of law cannot be conceded), the objection cannot be sustained, for there is no allegation of the actual pendency of such a suit; and if there were, it could not be pleaded in bar, but simply in abatement of the present bill. But in point of fact, upon the remitter of the cause from the supreme court of probate, 1 take it to be clear, that the cause could not again depend in the inferior court, until the parties had done some act, by which the authority of that court was called again into exercise.
An argument ab ineonvenienti has also been drawn from the supposed conflict of jurisdictions, which may ensue, if this court should sustain its jurisdiction over this cause. To arguments .of this sort, in proper cases, this court will be disposed to listen with all possible deference. We shall not incline to encroach on the state authorities, or seek to withdraw causes from their proper forum. But when a suit is instituted by competent parties, on a subject matter cognizable by the court, I know of no authority that will justify us in declining the jurisdiction. We are not at liberty to shrink from the discharge of duties imposed upon us by the law, or to violate the rights of parties regularly before us, merely because the cause may occasion personal or public inconvenience. Such considerations belong to another tribunal. On the whole, I am very clear, that the plea in bar is insufficient, and must be overruled.
[For further proceedings, see Oases Nos. 6,183 and 6,184.]