I. The order was appealable; and when a chancery appeal lies, it brings the case- up for review with all matters of discretion open for consideration in the appellate court, precisely as they were in the court below.
II. The statute (Clomp. L., 1871, § 5147) prohibits a sale within one year after the filing of the bill. Whether or not this strictly requires the interval of a year between the service of subpoena and the sale, the purpose certainly was to give the mortgagor time within which to make payment and save the lands; and that purpose is not served by permitting a sale within six months after he first has notice, by service of subpoena or otherwise, that a bill has been filed, even though the bill may in fact have been on file, but inoperative, for six months previous. The court has a discretionary power in such a case, at least, to postpone the sale until the expiration of a year from the service of the subpoena; and such a discretion ought to liavebeen exercised in this case.
III. Good practice requires that a defendant who has ap
Order of confirmation reversed, with costs, and re-sale (Ordered.