
    KINCART’S HEIRS, vs. SANDERS’S EX’ORS.
    
      On a writ of error to reverse a decree of the Fleming circuit court.
    
    In a suit for the rescision of a contract for lands, if the complainant dies, it should be revived in the name of the heirs, not of the ex'ors.
    If def’t dies 'tis error to take a decree against his heirs, til they are served with process or have answered.
    11 Oct. 1819.
    
      Bibb for plaintiff.
   The Chief Justice

delivered the opinion of the court.

The decree in this case is erroneous: 1st, Because the object of the bill being the rescision of a contract for land, the suit after the death of the original complainant, was improperly revived in the name of his executor only. His heirs ought to have been parties. And, 2dly, Because a part of the heirs of the original defendant, against whom the suit was revived, does not appear to have been served with the subpoena, nor have they answered.

The decree must be reversed with costs, and the cause remanded for new proceedings not inconsistent with this opinion. 
      
      Absent, Judge Rowan.
     