1822. Crocket V. Lee. survey varies from it, unless the survey be made on land entirely different from the entry. That does not appear to be the fact in the present case. Cameron's entry calls for the head right hand fork of Welles' branch, for the head of a small run that empties into the north fork, and to lie about one and a half miles above the war path that crosses the north fork. The survey is upon the head waters of these streams, and lies a small distance above the war path that crosses the north fork. There is reason to believe, that, were the location to be sustained, the survey would be found to conform to it in part, though not perhaps entirely. This Court has no means of ascertaining how far they agree, and how far they disagree, and the decrees of the Circuit Court must be reversed. But as this reversal is not on the merits of the case, and the Court is rather inclined to the opinion that the decrees on the merits are right, no final decree will be directed in either cause, but each will be remanded to the Circuit Court, with directions to permit the parties to amend their pleadings. ANDREW CROCKET, Appellant, V. HENRY LEE, Respondent. DECREE. This cause came on to be heard on the bill, &c. and was argued by counsel; on consideration whereof, this Court is of opinion that the decree dismissing the plaintiff's bill was erroneous, in this, that the plaintiff is shown to possess the prior and better equitable title, unless his location, which is the foundation to that title be void for want of certainty, a point not properly examinable under the pleadings in the cause, as they now stand, because it is not put in issue. This Court doth therefore reverse the said decree, and doth remand the cause to the Circuit Court, that the parties may be permitted to amend their pleadings, and that farther proceedings may be had therein, according to law. SAME V. SAME. DECREE. This cause came on to be heard on the bill, &c. and was argued by counsel; on consideration whereof, this Court is of opinion that the decree directing the defendant to convey to the plaintiff the land therein mentioned, is erroneous in this, that the defendant is shown to possess the prior and better equitable title, unless his location, which is the foundation of that title, be void for want of certainty, a point not properly examinable under the pleadings in the cause, as they now stand, because it is not put in issue. This Court doth therefore reverse the said decree, and doth remand the cause to the Circuit Court, that the parties may be permitted to amend their pleadings, and that farther proceedings may be had therein, according to law. 1822. Crocket V. Lee. 1822. Macer's V. March 15th. (PRACTICE.) MACKER'S Heirs v. THOMAS. In real actions, the death of the ancestor, without having appeared to the suit, abates the suit, and it cannot be revived and prosecuted against the heirs of the original defendant. If the heirs be made parties by order of the Court in which the suit is brought, and judgment is entered against them by default for want of a plea, upon a summons and count against the original defendant, they may sue out a writ of error, and reverse the judgment. Mr. Justice WASHINGTON delivered the opinion of the Court. This is a writ of error to a judgment of the Circuit Court for the District of Kentucky. The defendant brought a writ of right in that Court against John Macker, the ancestor of the plaintiff in error, for an undivided moiety in a certain tract of land. After a summons served upon Macker, he died, without having appeared to the suit, and a rule was obtained by the plaintiff below, upon the heirs of the defendant, to show cause why the suit should not be revived against them. This rule being served and no cause shown to the contrary, the suit, by order of the Court, was revived against the heirs, the plaintiffs in error, and at a subsequent term of the Court, judgment by default was entered against them, from which judgment this writ of error is prosecuted. The main question for the decision of this Court is, whether the Circuit Court erred in directing the suit to be revived against the heirs of Macker, and ren dering judgment against them? The Court consi- It is objected by the counsel for the defendant in error, that the defendants in the Court below could not sue out and prosecute a writ of error, because they failed to appear and plead to the suit in that Court. No case was referred to in support of this objection, and it is confidently believed that none can be found to countenance it. Although the plaintiffs in error did not plead to the suit, they were nevertheless made parties to it by the order of the Court, and as such, judgment was rendered against them, and that too upon a summons and count against the ancestor. Being, then, parties to the suit, and affected by the judgment against them, they were 1821. Macker's V. Thomas. 1822. Macker's Heirs V. Thomas. clearly entitled to sue out a writ of error; and although the judgment was entered by default for want of a plea, they may be injured not less by such jndgment, than if it had been entered upon a verdict. If judgment in an action of trespass be rendered against one defendant by default, and in favour of the other defendant upon a plea, the former may alone bring a writ of error. (Lev. 220. Hob. 70.) If it should be said that the appearance of the plaintiffs in error in the Circuit Court, by an attorney of that Court, cured the error committed in reviving the suit against them, the answer is, that by the death of the ancestor, a new cause of action arose against the heirs, and the plea is not in the same condition as it was in the lifetime of the party. The suit having once abated by the death of the defendant, it was out of Court, and a new summons and count against the heirs was necessary. Besides, the appearance was not voluntary, but was the consequence of an erroneous order of the Court, enabling the plaintiff below to prosecute the suit against the heirs. It is objected, in the last place, that if the plaintiffs have a right to prosecute this writ of error, they nevertheless cannot assign for error the order of the Court reviving the suit, because they failed in that Court to appear and except to the opinion of the Court in relation to the order. But an exception to the opinion of the Court is only necessary when the alleged error could not otherwise appear upon the record. The error in this case was in ordering « Green v. Watkins, 6 Wheat. Rep. 262. |