Martin, J., delivered the opinion of the court.

The defendants being the executors of the ancestor of the defendants, and also their tutors, were called upon to render an account of their administration in both capacities, and complied with the desire of the plaintiffs, who thereupon filed opposition to the accounts thus rendered, The suit was continued during the monthly terms of the Court of Probates, from April to December, when the Pontiffs not appearing, a judgment of non-suit was entered, Shortly after, and during the December term, Wells came forward and filed his affidavit, stating that he was the trans-fen'ee of the share of one of the plaintiffs, and that one 0f the attorneys of the plaintiffs had been prevented, by ...... ,7 , 1 indisposition, from attending court on the day the non-suit was taken, and that the other was absent on a journey, although his return before that time had been anticipated ; ° . 17 he therefore prayed that the non-suit be set aside, which wa,s refused, whereupon he appealed.

It has been objected in this court that the appellant was not a Pariy this suit at its inception, during its progress, nor at its termination by the judgment of non-suit, that he has no interest therein, and is not aggrieved by this judgment, wherefore the appellees pray that the case may be remanded for an jnqUjry into his interest. This has appeared to us unnecessary, as the motion was received and acted upon in the Court of Probates, without absence of any interest in the applicant being urged at the bar, or in the opinion of the court overruling it.

It would have been the duty of this court to reverse the judgment of the Court of Probates, even if the motion to set aside the non-suit had not been made. The absence of the plaintiffs when called, might, at most, have authorized the Court of Probates to overrule their objections. jt cannot, however, justify turning them out of court ’ .

J , , ° without a final action on their claim, It is, therefore, ordered, adjpdged and decreed, that the judgment of the Court of Probates be annulled, avoided and reversed, and the case remanded for further proceedings according to, law; the appellees paying the costs of this, appeal.