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which the statute requires as a foundation for an order, and he may present the same to the Judge of the proper District Court, and if the order is given the same may be served by the mortgagor himself, and by this simple process a statutory foreclosure may be arrested, and the owner of the mortgage required to foreclose by action, if at all. Whether so radical a measure is expedient or not, or, if expedient, whether an amendment should be made which would afford protection in the way of reimbursement to mortgagees in cases where it might turn out, in the action to foreclose, that the mortgagor failed to assert or failed to prove that he had any counterclaim or defense to the sum sought to be collected by the foreclosure by advertisement, are questions which appertain wholly to the legislative department of the state government, and do not fall within the province of the courts to determine. The proviso in question is not assailed on constitutional grounds, and, under an established rule of construction, we have assumed its constitutionality accordingly. No doubt exists of the plenary power of the legislature over the subject matter of foreclosures of mortgages by advertisement. Such foreclosures are purely statutory in their nature and origin. The statute creates the proceeding, and determines the conditions upon which it may be had. Some mortgages cannot be foreclosed by advertisement, and others may be upon the terms and conditions laid down in the statute; and at present, while we abstain from deciding the point, we are unable to see why it is not competent for the legislature to declare that, upon a certain state of facts being made to appear by: affidavit to the satisfaction of the Judge of District Court of the proper county, such judge should not have the discretion to direct that a given mortgage shall be foreclosed in court, particulary in cases where the mortgage involved is executed subsequently to the enactment of the statute. In view of the novelty of the proceeding, and particularly in view of the great number of cases in which it has been resorted to by mortagors as a means of compelling the foreclosure of their mortgages by action in court, we have been led into a discussion of some