
    Irwin against Gallagher.
    Error cannot be assigned in a matter collateral to the action. Hence, where after a sale oí lands under an execution, it was submit-Court to destatement"of facts, whether the actionfor* ajudgment creditor, was entitled to the brought by the Sheriff into Court, more than sufficient to pay the debt and costs, it was held, that the opiCourtofCommon Pleas ject to revioferror"Wit
    In Error.
    WRIT of error to Washington county,
    Foster, for the plaintiff in error.
    Alexander, for the defendant in error.
   Per Curiam. —

There is no error to be found in the record of this action. But the defendant below, complains of error in a matter collateral to the> judgment-, in which the Court decided, at. the request of the parties to the suit, and 0f another person who was no party. . Gallagher, the plaintiff below, levied on the defendant’s land, in which the defendant only an equity, having purchased the land from the , † 01 ' plaintiff, but, paid only part ot the purchase money. Gallagher, was the purchaser from the Sheriff, and the purchase money, brought into Court by the Sheriff, was more than the amount of the debt and costs recovered in this suit. An application was made to the Court, to order the Sheriff to pay the surplus to E. Keen, a judgment creditor of Irwin’s. This surplus was claimed also by the plaintiff, and. it was agreed, t^at Court of Common Pleas should decide, who was entitled to it. The Court decided in favour of the plaintiff, and that decision is now complained of, as erroneous. But it is t^e °P^n'on °f this Court, that error cannot be assigned in that decision, because it arose on a matter collateral to the action, on a statement of facts agreed on by the parties, and submitted to the Court of Common Pleas for their opinion. We do not consider it any part of the record in the suit between Gallagher and Irwin. That suit was brought to an end. Judgment was rendered, execution issued, and the plaintiff has received the full amount of debt and costs. All the rest is foreign to the action — matter brought before the Court in a summary way, and submitted to their decision by consent. It is not the subject of a writ of error, and seeing no error in the record of the action between Gallagher and Irwin, we are of opinion that the judgment should be affirmed.

Judgment affirmed.  