The subject of the appellant’s petition was clearly within the jurisdiction of the court, and it ought to have been entertained. At least a part of the matter charged was proper to be answered, and only by the executors after they had been brought in. To the rest, they might perhaps have demurred. But the court ought not to have arrested the proceeding in the first instance; for the citation was as much a matter of right as a subpoena in chancery. Besides, the court could not be judicially informed, in the first instance, that a part of the matter had already been adjudicated. A judge could not quash an original writ, because he might know that the matter had been previously tried, instead of leaving the defendant to plead it. We know nothing of previous litigation between the parties. We have no more before us than a petition for a citation, with a rejection of it for no apparent cause; and we must not lose sight of the leading principles of regular practice. The record is remitted, to enable the court to get at the merits in the regular way.
Decree reversed, and procedendo, with citation, awarded.