It does not lie in the mouth of these appellants to raise the objection that the fund ivas not in court for distribution. _ They appeared before the auditor, made no objection to his jurisdiction, presented their claim, and it was passed upon. They filed exceptions to the report without raising this objection. If they were parties in interest, under the act of June 28th, 1871, they must be held at this stage of the proceedings to have assented to the distribution by the auditor. We see no such palpable error in the findings of fact by the auditor confirmed by the opinion of the Court as would justify us in reversing the decree. It is evident, we think, that sections 2d and 5th of the agreement of September 21st, 1877, were dependent covenants, — the one the consideration of the other. The failure of the performance of section 5th, found by the auditor, released the Gas and Gaseous Fuel Company from their obligation under section 2d, and it followed that the appellant had no claim on the fund.

Decree affirmed, and appeal dismissed at the cost of the appellants.