
    Edrington, &c. vs. Harper.
    
    chancery,
    Error to the Franklin Circuit; Daniel Mayes, Judge.
    
      Specific performance. Foreclosure. Mortgage.
    
    January 6.
    See casc
   Chief Justice Robertson,

delivered the opinion of the court.

This case was in this court once before, (III J. J. Marshall, 353,) on its return to the circuit court, the complainant in the suit, defendant in the writ of error, elected to proceed in personam for his money, and waived his right to pursue a doubtful security.

The circuit court thereupon rendered a- decree in his favor for the money, to which he seemed to be entitled.

To this decree, we perceive no available objection. Having filed his bill for a specific execution, he had a right to a decree for his money, as he failed in his first object. He might have sought a foreclosure of the mortgage. But he was not bound to do so. He could not have subjected the absolute title to sale under the mortgage, unless he had made Mrs. Edrington a party. The former opinion gave him leave to make her a party. But it was certainly not necessary that she should be a party when the right to proceed for a foreclosure was waived; and as the chancellor had the right to decree the payment of the money in personam, it was not necessary to proceed for a foreclosure.

Monroe, for plaintiffs; Hugging for defendants.

The grounds urged for opening the decree after it. was rendered, and for allowing an amended answer in the nature of a cross bill, were insufficient, and therefore, the circuit court did not err in overruling them, The answer might, and ought to have been filed before the decree was pronounced. It was the fault of fhe plaintiffs, that a cross hill was not filed at a proper time. This court cannot now help them.

Decree affirmed.  