
    
      In Re, Cochran v. Lynah.
    The commissioner’s report on matters of account may be opened after confirmation, where the fond is still in the power of the Court, for the purpose of correcting an error originating in mistake, or fraud.
    The receipt, by an assignee under the insolvent debtors act, of funds of the assigned estate, which are applicable to the payment of a debt due to himself,, is an extinguishment, or satisfaction pro tanto, of his demand.
    At Charleston, January, 1831.
    In the year 1822, Edward Lynah made a voluntary assignment of ,his effects for the benefit of his creditors, of whom Thomas Cochran was amongst those who were preferred; and he was the oldest judgment creditor. In 1825, Edward Lynah, having been arrested at the suit of a creditor, took the benefit of the insolvent debtors act, and Thomas Cochran, Stephen Elliot, and Charles B. Cochran, were appointed his assignees. Soon afterwards, in the same year, a bill was filed, by the assignee under the voluntary assignment, to have the trusts of the deed executed; and subsequently another bill was filed by the assignees under the insolvent debtors act to have the estate distributed according to the act. In 1828, the Court of Appeals, by their decree, sustained the voluntary assignment, in opposition to the claims of the assignees under the insolvent debtors act; and ordered an account to be stated of the debts due to creditors, and amongst others, of that due to Thomas Cochran. In May, 1829, the commissioner reported the sum of $439, due to Thomas Cochran on judgment, and this report was confirmed by the Court; but pending these proceedings Thomas Cochran had received, on account of the sale of five slaves belonging to the assigned estate, the sum of $510.05, which was not credited to the judgment, nor otherwise accounted for. And in 1830, and before the assets were distributed, the assignees under ■the voluntary assignment filed a petition, praying that the account might be opened, and the said Thomas Cochran required to account for the money received on account of the sale of the slaves.
    Johnston, Chancellor, by whom the cause was heard, dismissed the petition; from which order the petitioners appealed, and now moved that it be reversed.
    Petigru, for the motion.
    The report may be opened at any. time, while the fund is in Court. Lashley v. Hogg, 11 Ves. 602. Shubrick v. Shubrick, 1 M’C. Ch. 406. A report will always be reviewed for manifest error, if no decree is grounded on if. Turner v. Turner, 1 Swanst. 156, note. 1 Jac. and Walk. 39, S. C. Manaton v. Molesworth, 1 Eden, 18, 26. Pennington v. Lord Muncaster, 1 Mad. Rep. 555. Cochran ought to have credited the sum in question to the judgment. He was intitled so to apply it, and it was therefore his duty to do só; and the judgment was extinguished pro tanto.. The omission was either fraud, or mistake; and- Cochran, who was a trustee, cannot have any advantage of either. The debt is still due, for there is no pretence, that the sum received for the slaves has been in any way paid, or accounted for; and then both demands are in mutual rights, and they may be set off! This is equity, independent of the discount act. Francis’ Maxims, 36. Ex Parte, Stephens, 11 Ves. 27. James v. Kynnier, 5 Id. 108. Ex Parte, Hanson, 12 Id. 346. Taylor v. Okey, 13 Id. 180.
    
      Gilchrist, contra.
    
    
      The report concludes the question; and there *s n° ev^ence eitNer of fraud, or mistake, to furnish a ground Jot' opening the report. This application is not made until after the death of Cochran, who might have explained any thing, which requires c.xplanation. His Honor was right therefore, in the absence of any evidenee of either fraud, or mistake, in regarding the report as settling all question in relation to the money alleged to have been received by Cochran for the slaves.
   Johnson, J.,

delivered the opinion of the Court.

The power to open the master’s report after confirmation, although rarely exercised, seems fully sustained by the authorities. In Manaton v. Molesworth, 1 Eden, 26, the Lord Keeper exercised it, to lot in proof, that the defendant had by fraud set up certain debts, which had been allowed him. It is distinctly recognized by Lord Eldon, in Turner v. Turner, 1 Swanst. 156; and in a note to that case the editor has collected several cases, in which the power had been exercised. In a case like this, when the fond is still in the power of the Court, and all the parties before it, and when no delay, or inconvenience would result from it, it would be a mockery of justice, to deny the petitioner the right to open this report, in order to correct an error, which, to put it upon the most favorable footing, originated in the neglect of the party benefited by that error.; for it was the duty of Thomas Cochran to have brought into the account the amount which ho received on account of the slaves sold by the assignees.

On the remaining question there is still léss difficulty. Thomas Cochran was the oldest judgment creditor of Edward Lynah, and was intitled to priority of payment. The trust confided to him by the assignment was, to pay himself first, out of the proceeds of the assigned estate. He received $519.05, the proceeds of the sale of five slaves of the assigned estate; and the effect of the report of 25th May, 1829, which was confirmed, was to leave that judgment still open against the estate of Edward Lynah. But this is inadmissible . Thomas Cochran has received an amount greater than his judgment; and he was bound by the nature of his trust to apply it in payment, and it must be so applied.

The decree of the Circuit Court is therefore reversed; and it is ordered, that the amount received by Thomas Cochran, or so much of it as is necessary, bo applied to the payment’ of his judgment against Edward Lynah, and that satisfaction thereof be entered.

O’Neall, J., and Harper, J., concurred.

Decree reversed.  