Asbury Park & Ocean Grove Bank v. Giordano

Per Curiam. If there appeared to be any substantial merit in this application, we should refuse to consider it unless on a notice to the plaintiff below, or on the return of a rule to show cause. But an examination of the appeal papers shows that the suit was against defendant on a promissory note, and that the defense, which was admitted in point of fact, was that a mortgage had been given to secure the note, and was held by the bank, and defendant therefore claimed that no action at law would lie on the note until the mortgage had been first foreclosed. This is the sole point in the state of the case as settled by the District Court, and it is devoid of merit, because the act of 1880, requiring prior foreclosure, applies only to bonds and mortgages for the same indebtedness and does not apply to notes. This has been the uniform understanding of the bar and courts for many years. [556] It is suggested now that the note and mortgage were procured by duress, but there is no such point mentioned in the state of the case, and we cannot consider it. The application is denied.