Notwithstanding the ingenious argument of the learned counsel for the appellant, a careful examination of the record and evidence brought before us upon this appeal has convinced us that the question of the correctness of the order appealed from depends, after all, upon the questions of tender and laches. It is true that a question is raised in the appellant’s brief as to whether there was a default under the terms and conditions of the mortgage, but upon that question it seems to us that the defendant took inconsistent positions, and that the court was perfectly justified, in view of all the matters alleged in his answer and his petition to open, in assuming that the substantial *104trial matter in controversy was tbe alleged tender. In support of this we refer to the following clause in the answer: “ The defendant admits that there is due upon said mortgage the principal sum claimed $880, interest from November 1, 1899, to June, 1902, the date of said tender, but denies that there is interest due as claimed by the use plaintiff, to August 22,1904.” As is shown in the opinion of the learned judge the burden of proof was on the defendant, and while we do not say that there was not testimony from which the fact of tender could be found, we are nevertheless of opinion that the fact was not so clearly established that the court was not justified in refusing to open the judgment, especially in view of the appellant’s delay, and his failure to keep up the tender. The rule upon the subject of the review of the refusal to open judgment where there is conflicting testimony is well understood and need not be reiterated. We are of opinion that it does not require a reversal of the action of the court. The principles of law applicable to two returns of nihil to successive writs of sci. fa. sur mortgage are clearly and concisely stated in the opinion of the learned judge and further discussion seems unnecessary.

The order is affirmed and appeal dismissed at the costs of the appellant.