
    Ely Boyd, Jr. vs. George H. Titzer, who sues for the use, etc.
    1. BbyiVOE OB SUIT. In the name of heirs, if no administrator will qualify. The plaintiff in a suit, dying after the commencement of the suit, it may be revived in. the name of his heirs, if no one can he procured to administer. See Oode, section 2849.
    2. Same. Scire facias being ordered ai( the same term, will- not vitiate revivor. The ordering a scire facias at the same term the suit was revived, in favor of the heirs, will not vitiate the order reviving the suit.
    3. Eivoneous judgment as to one defendant, will not avail another defendant in the same judgment. The fact that an erroneous judgment is rendered against one of two joint defendants, from which he does not appeal, will not avail the other defendant, against whom a proper judgment has been rendered.
    4. Subeties on notes. Notice to holder to sue. Proof of possession of the note. When notice is given. An indorser or surety upon a note, who has giyen the principal notice to sue to the holder, or he will be released of his liability, must establish by proof, that the party notified, held the note at the time of the service of the notice.
    FROM POLK.
    This cause was tried at the May Term, 1867, when there was a verdict and judgment in favor of the plaintiff; from which Boyd appealed. Judge William L. Adams, presiding. '
    P. B. Mayfield, for Boyd.
    J. B. Hayle, for defendants in error.
   ANDREW McClain, J.,

delivered the opinion of the Court.

This suit was commenced in the Circuit Court of Polk county, on a note executed by John Duff, now dead, with defendant Ely Boyd, his security, to Titzer, and by Titzer transferred by delivery, to Robert W. McClary.

McClary having instituted this suit, died; and under the provisions of the Code, sec. 2849, the suit was revived in the name of his heirs at law — no person being willing to administer. This proceeding was correct: 3 Head, 568.

The record, however, shows that a scire facias was ordered at the same time the order of revivor was made. This was unnecessary, but cannot have the effect to vitiate the order of revivor.

The administrator and administratrix of Duff, made no defense, but Boyd, the security, filed his plea, alleging his discharge by reason of notice to the holder of the note to sue, and failure to do so within the required time; and issue was taken on this plea, and this was all the issue in the pleadings.

It appears that the administrator and administratrix of Duff, having made no defense, the cause proceeded as though they had done so, and a verdict was rendered against them with Boyd, and a joint judgment rendered on the verdict.

This proceeding was irregular: 4 Sneed, 588. But however erroneous it be as to the administrator and administratrix of Duff, we cannot see that there is error in it, of which Boyd, the security, can complain. It does not operate to his prejudice that the administrator and administratrix of Duff, were erroneously joined with him in the verdict and judgment.

The administrator and administratrix have not appealed, and the judgment must be affirmed as to Boyd, unless it is erroneous on some other ground.

He insists that he is discharged in consequence of his notice to McClary to sue, and his failure to do so in proper time. This defense would be available if it appeared that McClary held the note when he was notified — of which fact there is no evidence: Code, 1968; 4 Sneed, 75. The notice was served in May, 1863, and this suit was not commenced till September, 1865.

Let the judgment be affirmed as to the security, Boyd.  