The New York herald., 1875-12-12
THE COURTS.
Equities In Foreclosure Sale Result
ing In a Deficiency.
THE GREAT RAILROAD BOND FORGERY SUIT.
Power Of The Comptroller Of the Currency TO
Assess National Banks

In suit brought by the Equitable Life Assurance
Society OF the United States against Phebe Stevens and
Ledyard Stevens executrx and executor Alexander
H. Stevens defendants' testator, made bond and
mortgage the plaintiff 10 $4,000 An action
was brought by the plaintiff on the nth OF October,
1873 to forecose the mortgage and decree pro con-
fesso was entered January "a 1874 The premises were
sold in pursuance OF the decree February 2S, 1874,
which sale resulted in a deficiency OF $2,557 Is The
costs and allowances Of the uncontested foreclosure
amounted to over $3.50. No judgment for deficiency
was asked for obtained, and Mr. wadding,on, the
attorney for plaintiff in charge OF the foreclosure,
distinctly stated before judgment that judg-
ment for deficiency was sought for. The
premises were purchased by the plaintiff at
the foreclosure sale without any contest The
foreclosure and sale period Of public depres
ston caused by pecunary panic and the property was
bought in by the plaintiff Al for loss than its
value Seven months after tho plaintiff bought in the
premises the same was sold for amount largely ex
ceedng tho debt expenses and costs. The plaintiff
then commenced an action against the defendants for
the deficiency, and on motion Of INC Defendants the
by Judge Loew, Of the Court OF Common Pleas. The
plaintiff made an application for leave TO sue, which
order was granted by Chief Justice DAILY the solo
ground stated in the order granting leave TO that
the Court had power or authority 10 deny the same
An appeal was taken from that order 10 the Court OF
Appeals.
Van Syck the order appeaable that the order
OF the Special Term expressly based upon the
alleged want OF power in the Court to deny the
plaintiffs notion that Judge Dalys decision proceeded
entirely upon ground that tho plaintiff had
legal right to for the deficiency whatever might be
Thought of their bringing the action under the crcum-
stances and that this the language merely of
Judge who not allowed TO exercise discretion but
OF who thought he restrained by the law from
refusing the relief sought IL further urged that this
power OF the Court only be exercised when no udg
nent for the deficiency is asked for IN the complaint
rfta htp rtWh
nent and elects 10 rely upon his mortgage rather
Than 70 the bond TO ask for Judgment Of de-
hciency, he cannot complain that the Court should
then have the authority to determine whether
he is entitled to any further remedy, and that
the authority only vest after the neglect Of the
creditor avail himself OF tho benefit OF the statute,
and then only when II would DO unjust to permit tho
creditor proceed The construction Of the statute
contended for by the defendants would not render the
statute unconstitutional Had the statate taken away
all action the bond II would have been unconsttu-
tona The creditor, however, is entirely free to COM
action on the bond before he elects 70 pro-
ceed In equity. BY this proceeding In equity he valves
all right TO proceed at law The plaintiff IN this case
selected its forum and avaed itself of the other
provisions OF the statute and therefore cannot object
20 its unconsttutonality. The other points raised
that there Is Of action against the
defendants for the alleged deficiency; that the cases
also hold that the value OF the property purchased
by the mortgage equal the debt action will
lie on tho bond; that the plaintiffs own
acts contributed largely to the deficiency; that the
order giving leave to sue was granted on the ground
that the plaintiff had strict legal right to sue, and
and that the part OF the defendants in the
foreclosure proceeding prevented the plaintiff asking
Tor aJudgment OF deficiency But these various points
ssion has just been given, Judge RapalIo writing the
opinion sustaining the argument Of Mr.. Van Slyck
The Court holds that the Court below should have
ertaned the application and considered and passed
npon the equities and merits Of the case and that the
present order should be reversed and the case
handed for rehearng at Special Term.
THE GREAT BOND FORGERY SUIT.
This action has beon on before Judge sper and
ury the past week and occupied the attention of
The Court The interests involved are OF so much mo
that Il requires the careful examination OF both
Cour and jury 1t similar all the salient points to
the trial heretofore between tho National Trus.
Company OF the city OF New York and the
defendants in this action, which was decided
the Special Term Of this Court 10 BY
present action is for $S5 00o During the past week
tho counsel for the plaintiff have most carefully
Examined their witnesses and brought to light what
They claim TO be the against the defendants In
this particular special reference IS made to the exam
nation by Mr. William Writ hewitt, of counsel for the
plaintiff of Mr.. Thomas residing in Fourteenth street.
With whom OF the defendants, Walter L. Sheridan
alias Ralston, alias Stewart, resided he being as
verred, the one who obtancdthe money from the
plaintiff by which the intimacy existing between
Sheridan, Ralston and Gleason
established. other points OF interest were
developed during the week, and especially the test
nony Of Spence Pettis, one of the principal witnesses
or the plaintiff, showing the conspiracy TO forge rail-
road bonds OF many denominations. No effort has
ecn madc the part OF the plaintiff to corroborate
who made the seals is alleged by the plaintiff for
he defendant Mrs Pettis' testimony, wife Of Spence
eets Is clear and uncontradcted Notwithstanding the
evere nation OF Messrs Purdy and Shafer.
rho will probably occupy week two more, tho
plaintiff not yet having rested This action Is OF great
Importance to the monetary and commercial interest
this county and CITY, and excites, in consequence
arge attention. The plaintiff Is represented by Mr.
William Writ Hewitt Algernon S. Sullivan and Richard
Elliott and the defence by ex United states District
Attorney Purdy and Ira Shafcr Every inch of ground
Is being fought by the defendants the testimony
produced.
ASSESSMENTS OF NATIONAL BANKS.
The power Of the Comptroller OF the Currency Of tho
United States in the matter OF to bo made
npon the stockholders OF insolvent national banks
up yesterday before Judge Blatchford, in the
United States District Court II in the matter of
ono OF the national banks OF this city
In bankruptcy, and against the stockholders OF
which tho Comptroller has levied assess
ment OF 100 per cent upon the full amount
Of stock. demurrer filed against
bhe declaration OF the receiver, Charles Strong, by
Charles Tracy behalf OF himself r G. Root and q.
p Nelson ct al, denying the right OF the Comptroller
70 make such an assessment claiming that in so doing
be assumed the functions Of the Judge Blatch
ford said this right had been sustained by the Supreme
Court OF tho United States aud, aside from the fact
lhat hr. Tracy claimed this decision be obitcr
tctum, he bad himself so decided At lIr Tracy's
quest Judge Batchford took the papers the case
said he should overrule the demurrer
DECISIONS.