to prejudice the minds of the jurors, the error in the receiving of it would not have been cured by ruling it out after the arguments had closed: Railroad Co. v. Decker, 82 Pa. St., 119. Although such reservations as those set out in the fourth and fifth specifications seem useless, yet there is no error; they did not interfere with the hearing and considering of the evidence by the jury. Nor did they mislead the counsel, for he took his exceptions when his objections were overruled and before the testimony was heard. | "It shall be lawful for the overseers of the poor of any township, having first obtained the approbation of any two justices of the peace of the county, to lay a rate or assessment, not exceeding one cent on the dollar at one time, upon all real and personal estate within such township:" Act of April 15, 1831, Sec. 26, P. L., 515. | Approbation of two justices of the peace lies at the foundation of the power of the overseers to lay a rate or assessment. And if not obtained, their act in laying a tax is unauthorized by the statute. So the law is written, and neither the overseers of the poor nor the courts can treat it as obsolete. Section 29 of the same act provides, that the overseers of the poor of every township shall cause the rates or assessments laid by them to be entered in books, which they shall sign | and deposit with the town clerk; but if there be no town clerk, the book shall remain with the overseer, and the town clerk or overseer, as the case may be, shall permit any person charged with township rates and levies to inspect the same, at all reasonable times, without any fee or reward. This section is directory of things to follow the lawful laying of rates or assessments, and the validity of the tax does not rest upon them. If overseers neglect to perform the duties directed by this section, they may incur severe penalties, although the rates or assessments laid by them, after having first obtained the approval of two justices of the peace, are valid and collectible. | been disregarded, and it was error to admit the duplicates described in the second and third specifications of error. The lease vested in the lessees and their assigns the exclusive possession of the land for the purpose of searching for, producing, storing and transporting oil. They had the right to possession of so much of the land as was necessary for said purpose, and were in the actual possession of a considerable part, if not the whole. Their right was not a mere license. The rulings of the court, in the charge and answers to points, were not erroneous as respects the defendants. Their sixth point was rightly refused. None of the other questions raised by the specifications of error need remark, except the right of the lessees to conduct away the gas without liability to account. It is said that the offer to prove that the plaintiffs had so taken the gas and consumed it on other property was overruled upon the authority of Kier v. Peterson, 41 Pa. St., 357. The defendants' claim for the gas is not under the contract; it is not within the term of the Defalcation Act, and if they have a right to recover for it, they cannot avail it as set-off. Speaking for myself, I exclude the inference that I agree that the lessees have the absolute right of property in the gas. I think the dissenting opinion by WOODWARD, J., in Kier v. Peterson, supra, is sustained by his reasoning and the authorities therein cited. Gas often escapes in large quantities from oil wells, and is of great value for fuel. It is conducted to towns, and extensively used in mills and dwelling houses. Its value may greatly exceed the value of the oil produced. That a tenant, who has only the right to take oil or salt, may conduct away the gas and appropriate it to his own use seems to me an arbitrary conclusion. Judgment reversed and venire facias de novo awarded. For plaintiffs in error, Messrs. Wilson & Jenks. Contra. Messrs. Maffit & Ross and B. J. & A. B. Reid. BRUCK v. MAULSBURY. Part of the plaintiffs' claim was for poor taxes, levied by the overseers of the poor of Beaver township. I. H. Alh, one of the overseers for 1877, called to prove the laying of the rates, in cross-examination, testified, that the overseers did not have the approbation of two justices of the peace; also, that they made no entry in any book but the duplicate. And George Snyder, one of the overseers for 1878, called for like purpose, testified, that the rates for that year were not laid with the approval of two justices of the peace. The testimony, instead of show-erset county. In a suit for the erection and construction of a saw mill, the defense being that the plaintiff had not completed the mill, the jury rendered a verdict in favor of the plaintiff for $246, "and the plaintiff to complete the job according to contract. Held, that such a verdict would be set aside. Error to the Court of Common Pleas of Som ing that the laying of the rates of assessments Opinion by STERRETT, J. Filed December was legal, affirmatively showed that the pro- | 30, 1882. visions of the 26th section of the Act of 1831 had The claim of plaintiff below, for work done in the erection and construction of a water power Glass v. Blair et al., 4 Barr, 196, in which the saw mill, was resisted on the ground that he verdict was "for the defendant, and that the had not performed his contract, in that he had plaintiff receive back the machine." In reversnot completed and put the mill in good running ing the judgment in that case this court said: order; "that the roof was not completed, pipes "It is an insurmountable objection to the vernot laid, and other important things, necessary diet that there is no means of compelling its perto the completion of the mill, were left undone." formance; for if the defendant refuses to deliver There was some conflict of testimony as to the the machine, which is an essential part of the terms of the verbal agreement under which the | verdict, there is no means to compel him. The work was done, but the main question for the only remedy would be by suit, on the ground of jury was whether the contract had been substan- rescission of the contract, and thus the verdict, tially performed by the plaintiff, and if not, which was intended to end the controversy, whether the defendant was responsible for the would be but the commencement or foundation non-completion of the work. Their verdict was of another action.” "in favor of the plaintiff for two hundred and forty-six dollars, and the plaintiff to complete the job according to the contract." months after the rendition of the verdict, the plaintiff, representing that he had "completed the mill according to contract," asked the court "to remove the stay of execution and permit him to have judgment and execution for the amount of the verdict." Ex parte affidavits were presented by both parties, and after argument the motion was granted, judgment entered and execution issued for the amount found by the jury. The action of the court in thus entering judgment, etc., is the subject of complaint in the several specifications of error. Several If that clause of the verdict which provides for the completion of "the job according to contract," could be treated as surplusage the judgmight be sustained; but it cannot be so regarded. The jury evidently considered it a matter of substance, something to be done by the plaintiff' in fulfillment of his contract, and as part consideration, at least, of the sum found in his favor. The only inference that can be fairly drawn from the language of the jury is, that they were satisfied plaintiff had not fulfilled his contract, and that he was still bound to complete it. Hence, it could not be treated as surplusage without disregarding the intention of the jury and thereby doing injustice to the defendant. To avoid that result the court undertook to inquire whether the plaintiff, after the rendition of the verdict, had completed the mill according to contract. That was a question of fact, involved in the issue, and should have been settled by the verdict. The defendant had a right to have it determined by the jury and not by the court. The issue presented by the pleadings called for a general verdict, which would have been conclusive of every question of fact involved therein, and, after judgment, a bar to all future controversy. The verdict was not responsive to the issue and should not have been received. A similar principle is recognized in It is no answer to say that, after rendition of the verdict, the plaintiff completed the work, as the jury determined he should, and that fact has been so found. The court had no right to pass upon that question, nor could they do so without virtually retrying the case for the purpose of ascertaining what the contract was, and to what extent it was performed by the respective parties thereto. The plaintiff in error has a right to have all questions of fact, involved in the issue, submitted to and passed upon by a jury. Judgment reversed and venire facias de novo awarded. For plaintiffs in error, Messrs. Coffroth & Ruppel and Valentine Hay. Contra, H. L. Baer, Esq. MCNAUGHTON'S APPEAL. While one of several partners may justly subject the partnership property to levy and sale in discharge of partnership indebtedness by giving a judgment note therefor in the name of the firm, he has no right to thus undertake to pay his individual debt without the knowledge of his copartner, even though the money for which the judgment note was given was used for firm purposes. Such a judgment is a fraud upon creditors of the firm, and may be set aside as to them in a collateral proceeding. An auditor appointed to distribute the proceeds of a sheriff's sale of the partnership property has a right to inquire into the validity of such judgment. Appeal of William McNaughton and others, execution creditors of the firm of Kingsland & Reynolds, from a decree of the Court of Common Pleas of Crawford county, distributing the proceeds of a sheriff's sale of certain property of said firm. Before the auditor appointed to report distribution of the fund the following facts appeared: About March 1, 1881, J. S. Reynolds and W. W. Kingsland formed a copartnership for the purpose of carrying on a grocery business, it being understood that Reynolds was to furnish the necessary capital. They shortly afterwards purchased the business of one Besanson for $780, "I have said the judgments confessed by Kingsland are in the same category as the one confessed by Reynolds. That is hardly true, indeed, if they were confessed by Kingsland, for he seems to have had very little in the firm or firm property." A decree was accordingly entered, awarding the fund to the bank. Whereupon the execution creditors took this appeal, assigning for error the decree of the court. 30, For appellants, Messrs. Neill & Heywang. Opinion by STERRETT, J. Filed December which was paid him by Reynolds. It appears, however, that on March 4, 1881, Reynolds had procured from the Second National Bank of Titusville, without the knowledge of his copartner, the discount of a note for $1,200 in sixty days, drawn by himself to the order of one A. P. Bennett, an accommodation indorser, and with a portion of the proceeds had made the above purchase. The note was renewed on its maturity, but on May 18, 1881, Reynolds gave to the bank a judgment note therefor, signed "Kingsland & Reynolds, J. S. Reynolds,” on which judgment was entered and execution was issued against the partnership property. Kingsland made application to the court to have the judgment opened as to him, which was refused. On May 20, 1881, he confessed partnership property sold on executions against judgments to the various appellants, creditors | of the firm, for the respective amounts of the firm's indebtedness to them. On these judg-· ments executions were issued, under which the property of the firm was sold for $916, which was paid into court. The bank claimed before | the auditor that it was entitled to the whole fund to the exclusion of the other execution creditors. The auditor reported, however, that the fund should be paid to the latter as firm creditors, inasmuch as the judgment of the bank was for the individual debt of J. S. Reynolds. Exceptions filed by the bank were sustained by the court, CHURCH, P. J., saying: "An examination of the testimony taken in this case brings me directly to an opposite conclusion from that reached by the auditor. "I find from the testimony that the debt of the Second National Bank of Titusville was a firm debt of the copartnership of Kingsland & Reynolds, or of the firm by whatever name it may have been called, whose stocks of goods were sold, and the proceeds of which were the subject of the present distribution. The bank's money went to pay for the original stock, with sundry additions made thereafter. This all appears from the evidence. "Judgment was confessed, it is true, by one member of the firm. So were the judgments of the other execution creditors, and thus they stand in precisely the same category as regards regularity. The fund in controversy is the proceeds of the firm of Kingsland & Reynolds. It is conceded that the execution creditors of the firm are entitled to participate in the distribution in the order of their respective writs; but it is contended that the claim of the Second National Bank of Titusville, for which it obtained judgment and issued the first execution, never was a debt of the firm. In this the appellants are sustained by the report of the learned auditor, who, upon evidence of the most satisfactory character, found that the claim of the bank originated in a note for $1,200, made by Reynolds, one of the partners to the order of and indorsed by Bennett, at whose instance the same was discounted by the bank for the individual benefit of the maker. When the note matured, it was renewed for sixty days; but about two weeks thereafter the bank, through the intervention of the indorser, procured a judgment note from Reynolds, for same amount, signed by him in the firm name and by himself individually. On that note judgment was immediately entered, and the execution in question issued. It is unnecessary to refer particularly to the testimony upon which the auditor based his conclusion that the claim of the bank was originally the personal debt of Reynolds, and never became the debt of the firm. The presumption is, that the finding of the auditor is correct; but, even if we were to reverse the well-established rule on that subject, the decided preponderance of the evidence would constrain us to say his conclusion was clearly right, and that the bank must have known that the debt was one for which the firm was not liable. Why, then, should the individual creditor of Reynolds be permitted to take the firm assets to the exclusion of partnership creditors? It is suggested that the money of the bank was used in paying for the original stock of merchandise with which the firm commenced business, and in replenishing the same from time to time; and therefore, by some species of equity, the firm should be liable for the money loaned to one of the partners on the individual credit of himself and his indorser. It is a mistake to suppose that any such ground of liability is tenable under the facts of this case. The agree ment between the partners as found by the auditor was, that Reynolds should furnish the capital necessary to commence business, and receive interest on so much thereof as might be in excess of his own share; and the testimony shows that the money was borrowed by Reynolds from the bank for the purpose of providing his portion of the capital. It was neither loaned to the firm nor upon its credit. On the con- | trary, it clearly appears that the note was discounted for the individual benefit of Reynolds and on the credit of himself and Bennett, his accommodation indorser; and hence the bank had no valid claim on the firm. If authority for so plain a principle be necessary, it may be found in Donnally v. Ryan, 5 Wright, 506, in which Mr. Justice WOODWARD says: 'Where no credit is given to a firm, which in law is a distant person from the members who compose it, why should redress be sought against the firm? As well might a creditor who had loaned his money on the credit of an individual attempt to pursue it into the business or property of third parties, and hold them responsible to himself." In view of the fact which must have been known to all parties concerned, that Reynolds individually, and not the firm, was the bank's debtor, the taking of the judgment note signed by Reynolds in the firm name without the knowledge or consent of his partner, for the purpose of subjecting the partnership property to seizure and sale on execution, was a fraud upon the creditors of the firm as well as the nonconsenting partner: Purdy v. Powers, 6 Barr, 492, and cases there cited. One of the general incidents of the partnership relation is the right of each partner to apply the firm assets to the payment of its liabilities, and following out that principle it has been held that one of several partners may justly subject the joint property to levy and sale in discharge of partnership indebtedness, by giving a judgment note therefor in the name of the firm, as was done by Kingsland in this case: Grier & Co. v. Hood, 1 Casey, 430; Ross v. Howell, 3 Norris, 129. But it is a very different thing, in a legal as well as moral point of view, for a partner to thus undertake to pay his individual debt without the knowledge of his copartner. execution of the bank cannot be questioned in this collateral proceeding, especially since the court refused, on the application of Kingsland, to open it as to him. Undoubtedly the general and well-established rule is, that an auditor, in the distribution of money in court, cannot inquire into the validity of a judgment regular on its face; but it is equally well settled that a collusive judgment may be attacked collaterally by judgment or execution creditors who would otherwise be defrauded thereby. Whenever such a judgment, or the execution issued thereon, thus comes in conflict with the claims of creditors, they may avoid its effect by showing that, as to them, it is a nullity: Dougherty's Estate, 9 W. & S.,' 196; Lewis v. Rodgers, 4 Harris, 18; Thompson's Appeal, 7 P. F. Smith, 175, 178; Second National Bank's Appeal, 4 Norris, 528. The facts of the case before us bring it fairly within the principle recognized in the cases above cited, and we are therefore of opinion that the learned judge erred in sustaining the exceptions to the auditor's report and awarding the money to the appellee's execution. Decree reversed, and it is now adjudged and decreed that the auditor's report be confirmed, and the fund distributed in accordance therewith; and it is further ordered that the Second National Bank of Titusville forthwith pay into the court below the money erroneously awarded to and received by it, together with the costs of this appeal. FRICK'S APPEAL. After a contract for the sale of land had been executed, and before any money had become due thereunder, the land in question was seized and sold by the sheriff, upon a judgment obtained against the vendor prior to the contract of sale. The amount realized at the sheriff's sale was more than sufficient to pay all judgments against the vendor, and more than the whole sum the vendee had agreed to pay for the land. Both the vendor and vendee claimed the excess. Held, that the excess was rightly awarded to the vendee by the court below. Appeal from the decree of the Court of Common Pleas of Fayette county. Opinion by MERCUR, J. Filed December 30, 1882. This contention arises in the distribution of a fund produced by a sheriff's sale of real estate. The correctness of the decree is determined by the extent of the appellee's interest in the property sold. The facts necessary to understand the case are these: The appellant owned the land bound by the lien of judgments. On the 16th of December, 1880, a written agreement, It is also contended that the judgment and under seal, was entered into between him and the appellee. The appellant, inter alia, thereby of his unpaid purchase money. When that is proposed to sell to the appellee, the offer to re- fully paid his claim on the property, and in the main open for forty days thereafter, all the coal proceeds thereof, is discharged. He is no more underlying certain lands therein described, at entitled to the excess than if the equitable owner the rate of $23.75 an acre, if the purchase money had sold his interest at private sale, for a sum should all be paid down in one payment; but equal to that excess, to one who took it charged if in two different annual payments, then to with the payment of the amount due for the be $25 per acre; the first payment to be made legal title. In either case such excess is the within three months from the date of acceptance measure of the value of the vendee's interest in of the proposal; a deed with general warranty | the land: Kerr et al. v. Day, 2 Harris, 112; to be made when the last payment should be Siter et al.'s Appeal, supra; Corson v. Mulvany, secured by judgment note or mortgage on the 13 Wright, 88; Smith & Fleek's Appeal, 19 P. property. On the 22d of January, 1881, and F. Smith, 474. again on the 24th, the appellee gaye to the appellant written notice that he accepted the proposition contained in the optional agreement, and would comply with all its requirements. On the 9th of April, 1881, and before any pay-equities in this case. The fact that, after acment became due from the appellee, according to the agreement, the property was sold on a judgment recovered against the appellant prior to the 16th of December, 1880. The sale produced a sum more than sufficient to pay all judgments against the appellant which were liens on the property, and more than the whole sum which the appellee had agreed to pay therefor. That excess was claimed by each party to this appeal, but was ordered to be paid to the appellee. This appeal is from that decree. It is true, specific performance would not be enforced if there were such superior equities in the appellant as to make it unjust to him to enforce the contract; but we discover no such ceptance of the offer, and before the vendee was in any default, the coal advanced in value, does not enlarge the equities of the vendor, nor deprive the vendee of the benefit of his bargain. If it had depreciated in value he must have borne the loss. As it was enhanced he is entitled to the gain. The contract was certain, fair and just between the parties. The learned judge committed no error in decreeing the fund to be paid to the appellee. Decree affirmed and appeal dismissed at costs of the appellant. For appellant, W. H. Playford, Esq. KELSO'S APPEAL. A sale of the land of a bankrupt, in pursuance of a decree in bankruptcy, does not divest the dower of the bankrupt's wife: Lazear v. Porter, 6 Norris, 513, followed. Where there are strong equities in a case in favor of the appellants the costs will be divided between the parties. SHARSWOOD, C. J., dissents. Appeal from the decree of the Court of Common Pleas of Erie county. The auditor found as a fact, and on sufficient evidence, that the appellee was not guilty of any fraud in procuring the agreement. The court confirmed the finding. The appellant | entered into the agreement with sufficient opportunity to fairly understand all its terms and conditions. No undue means were practiced. The agreement contains nothing unlawful or inequitable. It gave the appellee forty days within which to accept the proposition. He accepted it, and gave to the appellant notice thereof within the time specified. By this acceptance and notice the contract became binding on both parties thereto. Thenceforth there was no want of mutuality. It became a binding agreement for the sale and the purchase of the real estate. In equity the vendee became the The main question in this case was ruled in owner thereof, subject to the payment of the Lazear v. Porter, 6 Norris, 513. That being so price stipulated. His right of property therein recently decided we do not now think it necesflows from the contract, and exists before any sary to travel over the same ground again. We purchase money may have been made: Siter et there held that a sale of the land of a bankrupt, al.'s Appeal, 2 Casey, 178. Hence a sheriff's in pursuance of a decree in bankruptcy, did not sale on a judgment entered against the vendor divest the dower of the bankrupt's wife. The before his agreement to sell and convey, cannot | authorities there cited show under a general asgive him the proceeds of the equitable estate of signment for the benefit of creditors by an inhis vendee. As against his vendor the vendee solvent, his widow's right of dower does not is entitled to the sum produced by the sale in pass. It was therefore held that such effect excess of the amount which he agreed to pay. should be given to the deed of a bankrupt, conThe vendor's interest is limited by the amount | veying his real estate to an assignee. His wife's Opinion by MERCUR, J. Filed December 30, 1882. |