St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1889-10-19
The Supreme Bench Hands
Down Several Important
Opinions.
Pomeroy Convicted by Uncle
Sam and Brown Now on
Trial.
Railroad and Land Litigation
On Deck in the District
Court.
The Merry Booze Plays a
Star Part in the Bull
Pen.


in the supreme court.
The order of the lower court is re-
versed in the case in reassignment Of
Van Norman Bros. +. c. Bennett, as
signee. respondent, vs.. Lapp & Fler-
chem, claimants, appellants. Lapp &
Flerchem began an action in the United
States circuit court against Van Norman
Bros, in which they caused an attach
ment to be issued and levied by the
United States marshal on the property
of the defendants. The same day Van
Norman Bros. executed TO the respond
ent. Bennett. an assignment of all their
property for the benefit of creditors,
pursuant to the provisions of the in
solvent law of 1881. The assignee hav-
ing qualified, demanded possession of
the property from the marshal, who, act
ing under the instructions of appellants,
by whom lie was Unidentified, refused
to surrender it. The assignee then
made a motion in the United States
court to dissolve the attachment, which
was defended nominally by the marshal
but in fact by the appellants. The
action resulted in judgment for over
5000 against the marshal, which, on
appeal, was affirmed by the state SUI
preme court. The appellants paid in
full the Judgment against the marshal,
amounting to over $1,000, and then pre-
scented to the assignee, for allowance in
the insolvency proceedings, their claim
againt Van Norman Bros. The lnSO4-
vent estate had not been distributed nor
had the time for the presentation and
allowance of claims expired. The as
signee disallOwed the claim, which
action, on appeal. was sustained by the
district court. and from this order this
appeal was taken. In reversing this
order. the appellate body file the follow
ing syllabus:
A mere attempt to claim right or pursue
a remedy to which party is not entitled,
therefrom, will not deprive him of the bene-
fit of right remedy which he originally
had a right to claim or resort 10. The doc
trine of election between inconsistent rights
or remedies has no application to such case.
Rule applied toa case where an attaching
creditor contesting the validity of an assign
ment executed by his debtor pursuant to the
inSolvent law of 1881, refused to surrender
the assigned property to the assignee, and
defended an action brought by the assignee
in which judgment was finally recovered in
favor of the assignee for the value OF the
property and costs, which the creditor then
paid in full, holding that the creditor was
not debarred from presenting his claim for
allowance and sharing in the benefit OF the
assignment.
The order of the lower court is also
reversed in the caSe-JameS I. Harri-
son. appellant, VS.. NieOllet National
Bank of Minneapolis, respondent The
appeal raised the question whether
written order on bank or bankers to
pay sum of money at day subsequent
to its date and subsequent to its date of
issue is a ''check" or a "bill of eX-
change" and hence entitled to grace,
the question is one which has given rise
to considerable conflict of opinion.
About all the law there is on it is to be
found in Morse on Banking (3l sec.
691 and seq. The two principal author
tiles hold such an instrument ''check"
are In re Brown vs.. Story. 500, and
Champion VS.. Gordon, 70 Pa. st. 474.
the supreme court say both these au-
thorities were entitled to great weight,
but they stand alone, the appellate
courts of Rhode Island, and perhaps
Tennessee, being, so far as the justices
of the Minnesota court know, the only
ones which have adopted the same
views All other courts which have
passed upon the question have uni
fOrmly laid it down that such an instru-
ment is bill Of exchange" and that
an essential characteristic of ''check'
is that it is payable on demand. A draft
for money drawn on a bank, payable at
a day subsequent to the date of issue, is
not "check" but ''bill of exchange"
and is entitled to days of grace.
Another Judgment of the lower court
is reversed in the case of Louis W.
VanderhOOf ct AL. respondents, VS..
Caroline McAffee, defendant, and E.
Holloway d Co., appellants. The dis
closure of a garniShee is held INSULT
eient to warrant Judgment against
them. Upon the application for judg-
ment upon the disclosure of the gar
nishee, the disclosure must be taken as
true, and if tie plaintiff is not satisfied
with it his only course is to proceed by
supplemental complaint.
Again, in the case of George E.
Warner, respondent, VS.. Charles NJ.
Foote ct al, appellants. the evidence is
considered by the court and held insult
ficient to sustain the findings and de-
cision of the trial court.
In the appeal, George II. Sharp, re-
spondent. VS.. ID. d. Merrill, appellant,
in affirming the order of the lower
court the appellate body find: An
omission of words from an enrolled
bill. which does not change substance
or effect of the statute as it passed the
legislature, will not invalidate the act"
The order of the trial court was
affirmed in the following cases, which
raised no important legal points: Nils
Erickson, respondent, VS.. st. Paul q
Duluth Railway Company, appellant;
ALDER Lachlin, appellant. VS.. The Town
of Glencoe; A. 2. Peterson, respondent,
VS.. n. z. Nelson. appellant.