| Pa. | Oct 6, 1879
delivered the opinion of the court,
This was an action on the bond of the treasurer of the school district, of the Borough of Washington for the year 1873, and his sureties. The plea of payment admitted the execution of the bond, and this disposes of the first assignment: Lewis v. Morgan, 11 S. & R. 234; Abbott v. Lyon, 4 W. & S. 39; Gilinger v. Kulp, 5 Id. 264; Gebhart v. Francis et al., 8 Casey 78.
The defendant in error sought to recover the sum found due from the treasurer on a settlement of his accounts, made by the borough auditors. The first section of the Act of 21st May 1857, authorizes borough auditors to settle the accounts of school treasurers, with the right of appeal therefrom, to either party. Unless appealed from, such settlement is conclusive : Porter v. School Directors, 6 Harris 144; Township of Middletown v. Miles, 11 P. F. Smith 290.
The fifth assignment is to the rejection of evidence that the persons who acted as auditors had not been duly elected, and had not taken the oath prescribed by the Act of Assembly. The Act of 19th May 1874 directs, inter alia, that contested elections of officers of townships and boroughs shall be tried and determined by the Court of Quarter Sessions of the proper county. It is a matter over which the Court of Common Pleas has no jurisdiction. If, then, the due election of these persons was questioned, it could be tried and determined in the Court of Quarter Sessions only. It cannot be inquired of in this collateral proceeding. They were auditors de facto, if not de jure. The treasurer appeared before them, and
It is true, the Act of Assembly requires they shall, before entering on the duties of their office, take and subscribe an oath; and also imposes penalties for a violation of this requirementbut it does not declare that the omission to take the oath shall ipso facto vacate their offices. It requires judicial action, instituted for that purpose, to produce such result.
The sixth assignment is to the set-off. If this claim of set-off ever had any merit, it existed and was available in the hands of the treasurer, at the time his account was settled by the auditors. That was the time to have presented his claim. They were the tribunal to have passed upon it. If dissatisfied with their decision, the right of appeal was open to him. The legal effect of their decision is that the sum of $631, above all claims and demands of the treasurer, was then due from him to the school district. He cannot now, in this action, go back of that finding of the auditors. The learned judge was right in directing the jury to find for the defendant in error.
Judgment affirmed.