The opinion of the court was delivered by
Rogers, J.The distribution of a fund arising out of the proceeds of a sheriff’s sale, is an equitable proceeding; in its nature somewhat summary. It would lead to manifest injustice,- (of which this case is a pregnant example,) if the court should in no case, on application made in a reasonable time, "be permitted to correct its own mistake, when plain and palpable. Here the fund is still in court, and the error (admitted to be such) may be amended without injury to any human being. The petition by the party aggrieved was filed at the next term, and after the time for taking an appeal, viz. twenty days, had expired. If, then, the court may not review its decision, the creditor is without remedy. The money, to which he is clearly entitled, goes to a person who has no claim to it; whose debt, in fact, is not yet ascertained, as the award made in his favor is appealed from, and the appeal is now pending. The mortgagee was indeed penny wise and pound foolish, of which, by this time, he is no doubt convinced. The punishment, however, would be rather severe to mulct him with the loss of his whole debt. The stringent rule, which the appellee wishes to apply to the case, would be perilous to suitor's, and sometimes most painful to the court; as mistakes cannot always, in the absence of parties not represented by counsel, be avoided.
Decree affirmed.