Ould

This is an appeal from a judgment in favor of the defendants, in an action to foreclose a mortgage executed by the defendants, who are husband and wife, to secure the payment of a promissory note made by the husband alone.

The only defense is, that before the commencement of this action the plaintiff brought an action and obtained a judgment upon the note against the maker in a court of competent jurisdiction, in the State of Ohio. No part of the sum recovered in that judgment has been paid, and an execution issued upon it was returned wholly unsatisfied. The Court below found, as a conclusion of law, that by proceeding in said action at law upon the note alone, the plaintiff waived his security, and cannot maintain this action for the enforcement of it.

Although the statutes of this State since 1860 have contained a provision substantially like that of the Code upon which the respondent relies, the precise question raised in this case has never been passed upon by this Court.' That provision has been referred to and commented upon in several cases, but the question involved in this case did not arise in any of them. For that reason the solution of the question which has to be…