delivered the opinion of the Court—Norton, J. concurring.

This is an action upon an undertaking on appeal, and the only ground of error assigned is that no appeal had been taken, and therefore that the undertaking was without consideration. The evidence sustains the findings of the Court that an appeal had been taken, which was dismissed by the Supreme Court with costs, on the ground of the failure of the appellants to file the ■ transcript. The objection, therefore, is not well taken.

The judgment is affirmed.