#### Wilson B. Hodges, administrator of John Marriner *v.*Henry N. Jasper.

From Washington.

The Court in which an issue of *chvisavil vcl non*was finally tried, is the proper one in which to demand a reprobate, and where the trial was in the Superior Court, a demand of reprobate in the Coun- ■ ty Court was held to be erroneous.

This was an issue of *devisavit vel non.*On the trial it appeared that the supposed will had been offered for probate at the October term, 1804, of Tyrrell County Court, when an issue was made up. which by appeal was finally tried in the Superior Court, for the District of Edenton, where the will was established. It remained undisturbed until the Spring term, 1819, of Chowan Superior Court, when the Defendant in the present issue, filed a petition for a reprobate, upon which, at Spring term, 1821, Badger, Judge, sot aside the former probate, and directed an issue of *devisavitvel non*to be tried in that Court. On the next Spring circuit, Paxton, Judge, thinking that the Superior Court of Chowan had nor jurisdiction to try the issue, set aside that part of the former order directing the trial to be had in that Court. The. supposed will was then offered for probate in Tyr-rell County Court, when the present issue was made up, tried, and carried by appeal to the Superior Court, and then removed to Washington.

Before the trial in the Court below, the Defendant insisted that the County Court of Tyrrell had no jurisdiction to take the probate, but that if should have been demanded in the Superior Court of Chowan, where the record of the former trial remained. His honor Judge Donneix. reserved the point, but did not decide it as the Defendant obtained a verdict. The cause came here on the appeal of the Plaintiff, upon other points which it is unnecessary to notice,

*460
      *Badger,*for the Plaintiff,

insisted that the County Court of Tyrrell had no jurisdiction; the verdict in the Superior Court of the district of Ederiton, was tiie probate, anf| the reprobate ought to be had where tiie first probate was taken. In answer to the objection that the want of jurisdiction did not appear upon the record, he replied the Defendant had brought it forward, and coold not now object to its non-appearance.

*Gaston*& *Hogg,*for the Defendant, contended,

that the objection to the jurisdiction was riot well founded. The County Court had a general jurisdiction over the subject matter, and that the only thing which could oust that jurisdiction was the appeal to the Superior Court, and as the proceedings in that Court were set aside, the County Court was remitted to its general jurisdiction.

Per Curiam.

The demand of probate must-be dismissed ; for that it should have been made in Chowan Superior Court, as the Court in which the will was established. It was the judgment of that Court, to which the case was regularly removed, that established it, and not the judgment of the Court in which it was first offered for probate; the judgment of the latter was'vacated or annulled by the appeal. It would have been desirable to the Court, that the parties should have agreed between themselves, on some county for the trial of the matter in controversy, to prevent a further accumulation of costs, and we have accordingly advised it to them ; but as they have not accommodated if, we are constrained reluctantly to render the above judgment,