
    B. Bingham and others v. James Wyse, Guardian.
    The citation in error to the defendant in error, is only intended to bring him into this Court, to resist the reversal of his judgment, and he can waive such notice and voluntarily make his appearance ; should he so appear, all that the plaintiff could require would be an opportunity to show that error had been committed in the rendition of the judgment, without first having assigned the error in the Court below.
    A writ of error will not be dismissed at the motion of the plaintiff in error on the ground that there is no endorsement on the transcript by the Clerk of the District Court, showing by whom it was demanded, or to whom it was delivered.
    The defendant in error, who was plaintiff in the Court below, may suggest the death of one of several plaintiffs in error, and dismiss as to him, and take an affirmance of the judgment against the others.
    Error from Bowie. Judgment below, March 6th, 1854. Petition for writ of error, and bond, filed August 25th, 1854. There was an- execution in the transcript, dated June 6th, 1854, returned superseded, August 25th, 1854; but there was no citation in error in the transcript, nor assignment of errors; nor was there any endorsement on the transcript showing by whom it was demanded or to whom delivered. It was filed April 10th, 1855, by the defendant in error, who suggested the death of Bingham and prayed that the suit might abate as to Mm, (it was on a joint and several promissory note) and suggested delay, and prayed for damages. The plaintiff in error moved to dismiss on the ground stated in the Opinion, and on the further ground that there was no endorsement on the transcript by the Clerk of the District Court, showing to whom it belonged.
    
      S. 3. Pirkey, for plaintiffs in error.
    
      8. F. Moseley, for defendant in error.
   Lipscomb, J.

The record in this case has been submitted by the defendant in error, and he suggests the death of Bingham, one of the plaintiffs in error, and prays that the suit, may abate as to him, and asks judgment of affirmance against the other plaintiffs in error, with ten per cent, damages for delay.

The plaintiffs in error have interposed a motion to dismiss the suit, on the ground that notice of the writ of error had not been served on the defendant in error; that plaintiffs in error had no opportunity to bring up the case, for want of notice or service of petition, &c.

The citation in error to the defendant, is only designed to bring him into this Court to resist the reversal of his judgment, and he can waive such notice and voluntarily make his appearance. Should he so appear, all that the plaintiffs could require would be an opportunity to show that error had been committed in the rendition of the judgment, 'without first having as: signed the error in the Court below. This he may now do. We have looked into the record, and perceive no error, to reverse the judgment. Nor does it appear that there was any ground to justify taking out a writ of error. The judgment is affirmed with ten per cent, damages for delay.

Judgment affirmed.  