Per Curiam.
Complaint to foreclose a mortgage. Decree of foreclosure and sale rendered.
The complaint did not allege that no proceedings had been instituted on the notes, &c. Under the statute of 1843, this was expressly made necessary. R. S. 1843, p. 461, § 37.
The statute of 1852 is different. Under this latter statute such proceedings should be set up by way of defense. 2 R. S. p. 176, §§ 631, 636.
The note did not waive appraisement laws. The mortgage did in express terms.
If the note and mortgage are regarded as one contract, the waivér extended to both. If regarded as separate con
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tracts, the waiver is good as to the mortgage contract, and the appellant could have prevented a resort to that by paying the note.
J. P, Green, for the appellant.
J L. Wilson and E, R. Wilson, for the appellees.
The decree is affirmed with 3 per cent, damages and costs.