*353The opinion of the court was delivered by the
Chiet Justice.This cause was regularly set down for hearing in the court below upon the pleadings and proofs. None of the defendants appeared personally or by their counsel at the hearing, though notice of argument was regularly served. It appeared, by the evidence, that the mortgage, for the foreclosure of which the bill was filed, was duly executed and assigned. A decree as of course was made in favor of the complainant, and an order of reference to a master. Prom this decree the appeal is taken.
In such case, by the well settled rule of the House of Lords, in England, and of the Court of Appeals of the state of New York, no appeal will lie. 1 Dickens 287, Dean v. Abel; 10 Vesey 30, Stubbs v. Dunsany; 2 Scho. & Lefroy 712, Chamley v. Lord Dunsany; Blake’s Chan. 170; 2 Smith’s Chan. Prac. 22; 12 Johns. R. 493, Sands v. Hildreth; 14 Johns. R. 527, Franklin v. Osgood; 8 Wendell 219, Kane v. Whittick; 25 Wendell 249, Murphy v. The Am. Life Ins. and Trust Co.
The rule is founded in reason, and is applicable to the practice of this court under the constitution and laws of this state. If the defendants voluntarily absent themselves from the hearing, it may fairly he presumed that no defence is insisted on. If the absence was involuntary or accidental, and a defence was intended to be made, the remedy is by petition to the Chancellor for a rehearing, which in practice is freely granted. 9 Vesey 172, Vowles v. Young; 1 Ambler 89, Cunningham v. Cunningham.
This court sits not to exercise original jurisdiction, but to revise the decisions of the Chancellor. The constitution requires that he shall inform this court in writing of the reasons for his decree. It contemplates that the questions to be heard and considered by this court should have been heard and decided by the Chancellor. The practice in the House of Lords is as strict, in this respect, *354on the equity side of the court as at law. In Chamley v. Lord Dunsany, 2 Soho. and Lef. 712, Lord Eldon said — “ If this cause had been heard in 'the Court of Chancery or Exchequer in England, no client could have induced a counsel to make that point in the bar of this house under such circumstances; because such counsel, having been previously conversant with the cause, would have known that, as it was not made below, it could not be made by way of appeal.”
The rule which denies to a party who makes default at the hearing in the court below the right to an appeal was recognised and approved, and the grounds upon which it rests were very clearly stated by Chancellor Kent in Gelston v. Hoyt, 13 Johns. R. 576. It is not a mere technical rule, but is founded upon salutary principles, the violation of which would lead to serious evils in the administration of justice. It is true that the constitution gives to every party aggrieved by a decree the right of appeal; but it is equally true that the right is to be enjoyed and exercised subject to the regulations of law and to the rules and practices of the court. "We are all of opinion that the appeal must be dismissed.
But inasmuch as this question is now for the first time decided in this court — as the cause has been fully argued upon the merits, and as important public interests are involved in the controversy — the court desire it to be stated, as their unanimous opinion, that there is nothing in either of the grounds of appeal which would entitle the party to a reversal of the decree, if the case were properly before them.
1. Mortgages given to the treasurer of the state under the provisions of the “ act to authorize the business of banking” (Nixon’s Dig. 48) may be foreclosed, and the mortgage debt collected by a sale of the mortgaged premises. The remedy is not limited to a mere sale and transfer of the security.
2. It appears, by the evidence, that before the filing of *355the complainant’s bill, the contingency bad arisen upon which, by the provisions of the statute, the treasurer was authorized to enforce the collection of the mortgage debt.
Appeal dismissed.