“ It cannot be doubted that Coleman ought regularly to have been a party defendant, and that had the existence of his mortgage been known to the Court, no decree ought to have been pronounced in the cause until he was introduced into it. But this fact was kept out of view until the decree was pronounced, the sale made, the money paid to the creditor, and the report of his proceedings returned by the Marshal. If the manner in which the sale was made, and the money directed to be paid, be unusual and exceptionable, it was done by consent, and the error is not imputable to the Court. ”

“ There would certainly be great inconvenience in such a practice; and, if it be admissible in any case, on which the Court gives no opinion, it must be where the mischief resulting from a rejection of the petition would be irremediable. This is not shown to be a case of that description. Coleman's mortgage cannot be affected by this decree. His rights cannot be extinguished by it. His suit in the State Court will proceed as if this decree had never been pronounced. ”

“ The mortgage deed does not purport to secure the payment of such interest. Yet the decree of the Circuit Court subjects the mortgaged property to its payment. This error ought to be corrected, and may yet be corrected in the Circuit Court. It does not affect the sale. In all other respects, the decree is to be affirmed.
DECREE. This cause came on to be argued, &c. On consideration whereof, this Court is of opinion, that there is no error in the decree for the sale of the mortgaged premises in the bill mentioned, the same being made by consent ”