The herald and news. [volume] (Newberry S.C.) 1903-1937, 1913-07-18

clerk OF court until the Zlln OF MdlCA'
four days after the bank had failed.
1t was set out also that the clerk had
reasonable time in Which to have
collected the check; and that his fail
ure to do so was due to his own neg
ligence
The clerk admitted at the hearing
that the land in question was sold on
sales day in February, and that the
same was bid off by Walter Looney,
whose bid was transferred to Sarah C.
Eleazer ard that he was authorized to
make title therefor Sarah c. Eleazer.
The clerk of court admitted having
given H. NJ. Eleazer a receipt for the
$500, and he stated that at the time
the receipt was given, he told Mr.
Eleazer that the receipt was ssubject
to explanation and that as an accom-
mediation to him and for the reason
that he bought on the ground, he
would possibly be in better
position to collect the check
than Mr.. Eleazer, who lived
many miles from the court house.
1t was shown by the de-
fendant through a number Of wit
nesses who happened to be in the Of
fee when Mr.. Eleazer offered the
cashiers check, that the clerk would
not agree to execute the deed to the
property until he realized upon the
check. In his opinion, which is in
favor of Clerk of Court Shealy, Judge
Shipp says in part:
Judge Ships Opinion.
eff the clerk was negligent in his
dealings with the check, and if he
failed to collect it on account of his
want of diligence in presenting the
check for payment, or if in the first
instance he received the check in pay
ment, then the loss would fail on the
clerk. If, however, rhe clerk received
the check not in payment, or if he
used due diligence in collecting the
check or in presenting the check, then
the loss must fall on the Eleazers." "
Concluding, Judge Shipp says: Il
know personally most of the wit
nesses on behalf Of the defendant,
while I am unacquainted with most
of the witnesses for the petitioners.
After considering all Of the testimony
l am satisfied that Mr. Shealy received
the check not on payment OF the
money, but received it for the purpose
of collecting the check for petitioners,
and if collected, to apply it to the
purchase price of the land am,
therefore, satisfied from the testi-
mony, that the bank was in bad con-
dition at the time and that Mr. Shealy
made reasonably efforts to collect the
check and failed. He wrote several
letters to petitioner. H. H. Eleazer, in
forming him of his inability to
collect the check, notifying him
of his efforts to collect same. 1t
is true that the letters were
not sent to the correct post
office address of Mr.. Eleazer and it
may be on that account chat Mr..
Eleazer had no notice. Still, Mr..
Shealy acted in good faith and the
fact that he wrote the letters and
endeavored to notify Mr.. Eleazer,
bear forcefully upon the question OF
his diligence in reference to the check.
If the check was refused payment by
the bank in the hands of Mr.. Shealy,
on account of this embarrassed con-
dition, cannot see that Mr.. Eleazer
would have met with greater success
had he himself been in the situation
and had attempted to collect the check
himself. l think tnat the cneck was
not paid because of the condition of
the bank and tha= the loss should not
fall upon the clerk of court"
This decision is all the more i'm
portant because of the fact that
number of suits are likely to be
brought along similar lines in con-
nection with this famous bank failure.
The petitioners were represented by
D. w. Robinson, Of Columbia, while
Clerk of Court Shealy was represented
by Messrs. Efrd & Dreher, and Thur
mond, Zimmerman & Callison, of Lex
ington.