Sutherland et al. v. Phelps. 5. The court erred in awarding execution against the said Higgins alone. 6. The said Higgins is no party to the said writs of scire facias. 7. General assignment. R. S. BLACKWELL, for Plaintiffs in Error. C. HAVEN, District Attorney, for the People. BREESE, J. We see nothing substantially defective in the process or proceedings in this cause. The recognizance entered into by the parties defendants, was in pursuance of the statute, and the forfeiture entered up by the court, was in pursuance of the recognizance, and the scire facias, service and return thereof, in conformity to law in such cases. It is not for the court to inquire why the statute required such a condition of the recognizance, as the appearance of the party, it is sufficient to know that it did require it, and the party by not performing it is clearly in default. We see no error in the record, and affirm the judgment. Judgment affirmed. GEORGE G. SUTHERLAND et al., Appellants, v. ANSON APPEAL FROM COOK COUNTY COURT OF COMMON PLEAS. A declaration upon an appeal bond is sufficient, which avers that the appeal was The dismissal of an appeal is equivalent to an affirmance of the judgment. THIS was an action on an appeal bond. The declaration recites the condition of the bond, and avers that the appeal was dismissed, that the judgment was affirmed, and that the same was remitted by the Supreme Court to the Cook County Court of Common Pleas; that execution was issued, etc. The defendants below filed a demurrer to this declaration, assigning as special causes, that the declaration only assigns as a breach, that appellants "did not prosecute the said appeal;" Sutherland et al. v. Phelps. that the condition set forth in the declaration is not alleged to be the condition of the bond; that a sufficient breach was not averred; that an affirmance of the judgment was not averred, etc., etc. The court below overruled this demurrer, and rendered judg ment for plaintiff below, on the declaration. The defendants below appealed. R. F. WINSLOW, and E. ANTHONY, for Appellants. E. A. AND J. VAN BUREN, for Appellee. BREESE, J. We find nothing on the record of any assignment of errors in this case, except the general error, that judgment was rendered in favor of the plaintiff below, when it should have been rendered for the defendants. To determine this, we have only to look to the declaration and the proceedings upon it, in the court below. The declaration was in debt on an appeal bond, and on demurrer thereto, it was assigned as cause of demurrer, that the only breaches of the condition of the bond are, that the obligors did not prosecute the appeal. By reference to the declaration, and the breaches assigned, it will be seen that there is an express averment, that the defendants did not prosecute the appeal, but that" they have not paid the judgment so appealed, and referred to in said bond." A traverse of these allegations, so far from presenting an immaterial issue as urged by appellants, would present the very marrow of the case, and if maintained by appellants, would discharge them. The second, third, fourth and fifth causes of demurrer, are equally groundless. The declaration does aver that the condition set forth in the declaration, is the condition of the bond, and avers a sufficient breach; that the appeal was not prosecuted but dismissed, and the judgment not paid, and it is distinctly averred that the judgment of the Common Pleas was affirmed, by the allegation that the judgment of the plaintiff was affirmed, which by reference to the preceding allegations in the declaration is sufficiently certain, that the judgment obtained by the plaintiffs in the Common Pleas as set out in the declaration, was the judgment meant. "That is certain which can be rendered certain," by a mere reference. It is not necessary, it should be averred in such a declaration, that the order of the Supreme Court dismissing an appeal, was filed in the court from which the appeal was taken. An averment that such order was remitted to that court, is sufficient. Dodge, Adm'r, etc., v. Mack. As to the objection that the declaration contains inconsistent allegations in this, that it is stated that the appeal referred to in the declaration and in the condition of the bond was dismissed, and it is also stated that the judgment of the Court of Common Pleas was affirmed. There is no inconsistency in this. This court has said, in the case of Mc Connelv. Swailes, 2 Scam. R. 572, that the dismissal of an appeal is equivalent to a regular, technical affirmance of the judgment appealed from, so as to entitle the party to claim a forfeiture of the bond and have his action therefor. As to the objection that it is not averred in the declaration, that "the judgment appealed from was a final judgment," we can only say, we regard such an objection as frivolous, since it is only from final judgments or decrees an appeal can be taken. And so of the last objection, that it is not averred that the bond declared on was approved by the court. This was wholly unnecessary, for whether approved or not the obligors are liable, and we would intend it was approved, if necessary to sustain the judgment. We are inclined to think these objections, so groundless as they are, were made rather with a view to avoid the damages consequent of a dismissal of the appeal, than on any confidence in their soundness. We affirm the judgment, and may in a like case, hereafter, assess damages, as in case of a delay appeal. Judgment affirmed. WILLIAM M. DODGE, Administrator of William Doherty, ERROR TO PEORIA. The death of a defendant in execution, after its delivery to the sheriff, but before a levy under it by him, will not prevent that officer from proceeding to levy and sell. THIS was a judgment by confession, upon a cognovit in vacation, December 22nd, 1858, on note for $173.69, dated November 11th, 1858, due at forty days, with exchange on New York, and ten per cent. interest. Upon this judgment, execution was issued and placed in the hands of the sheriff. A motion was filed March 29, 1859, to stay proceedings, set aside levy, etc., for the following reasons, to wit: 93 165 130 Dodge, Adm'r, etc., v. Mack. 1. There is no legal judgment to warrant the execution. 2. William Doherty departed this life before any levy had been made. 3. The goods, chattels and property levied, were in the actual possession of the administrator, peacefully acquired before and at the time of the making of the levy. 4. The pleadings, record and proceedings are otherwise irregular and contrary to law, as appears by the same, and the affidavit filed, etc. Profert was made of the letters of administration. There was an affidavit of Wm. M. Dodge, plaintiff in error, showing that execution issued December 22nd, 1858, which was delivered to the sheriff on the next day, the 23rd. That no levy was made during the life of the defendant. That sheriff went to defendant's store on the 14th March, 1859, and demanded possession, of the clerks, which was refused, and no levy made. That affiant was appointed administrator March 19, 1859, and took actual and peaceful possession of the property in question. That on March 21, 1859, the sheriff broke the outer door of the store, and seized and removed a portion of the goods. The affidavit of John Bryner, the sheriff, was filed, stating that the facts stated in Dodge's affidavit are substantially true. That the clerks claimed no personal interest in the goods. That affiant offered to appoint one of the clerks custodian, but they refused. That he ordered said clerks out of the store, but they refused to go. That said clerks said that he, the sheriff, could have ingress and egress at his pleasure. That after that day the store was kept closed and locked. That he indorsed a levy on the 14th of March, and "considered himself as having a right to enter and take away the goods at any time thereafter." On March 30, 1859, the motion to stay proceedings, set aside levy, etc., was overruled by POWELL, Judge. The errors assigned are as follows: 1. There is no legal judgment to warrant the issuing of the writ of execution. 2. void. The levy mentioned in said proceedings is illegal and 3. The property seized by the sheriff was the property of the administrator at the time it was taken, and so not subject to any execution against said William Doherty. Dodge, Adm'r, etc., v. Mack. 4. The court below erred in overruling the motion to stay proceedings and set aside the levy. 5. The record and proceedings aforesaid are otherwise irregular and contrary to the law of the land. CHARLES C. BONNEY, for Plaintiff in Error. BRYAN & STONE, for Defendant in Error. WALKER, J. At common law, goods and chattels were bound from the teste of the writ of fieri facias, but by our statute they are only bound from the delivery of the writ to the sheriff. The question presented by this record is, whether the death of the defendant in execution, after such delivery, and before a levy, will prevent a levy and sale on the execution. In England, and many of the States of the Union, debts due by judgment, bond, or evidenced by a writing under seal, are regarded as of a higher dignity, than debts due by simple contract, and are given a preference in payment out of the estate of the deceased, over claims due by simple contract. While under our statute of Wills, no such distinction is made on account of the form of the evidence of indebtedness. It is true that our statute has divided them into classes, but bases the classification on different grounds. The 115 section of the statute of Wills, divides all demands against the estate of deceased persons into four classes: "First, All funeral and other expenses attending the last sickness, shall compose the first class. Second, All expense of proving the will, and taking out letters testamentary, or of administration, and settlement of the estate, and the physician's bill in the last illness of the deceased, shall compose the second class. Third, When any executor, administrator or guardian, has received money as such, his executor or administrator shall pay out of his estate, the amount thus received and not accounted for, which shall compose the third class. Fourth, All other debts and demands of whatever kind, without regard to quality or dignity, which shall be exhibited within two years from the granting of letters as aforesaid, shall compose the fourth and last class." Thus it will be seen that whether a debt be due by judgment, bond, or simple contract, if resort is had to the mode prescribed by this statute for its payment, no preference is given. Yet that there are cases where the debt may be collected without filing the claim, and sharing in the distribution of the assets, is undoubtedly true. As where the creditor holds a mortgage on property of deceased, or where property has been pledged to secure the payment of the debt, or where there has been a recovery and an execution issued and levied in the life |