Ex Parte Sanders , 168 S.C. 323 ( 1932 )

I concur in the result of the opinion of Mr. Justice Bonham upon the ground that under the facts of the case the statute upon which the appellant, Sanders, relies as giving him a preference is not applicable; nor is he entitled to a preference under any decision of this Court.

The dissenting opinion of the Chief Justice cites the decree of Circuit Judge Ramage in the case of Witt, Receiver,v. People's State Bank of South Carolina, 166 S.C. 1,164 S.E., 306, 307, as authority for the position he takes that the Act of 1930 is applicable to the Sanders claim. The decree of Judge Ramage in the Witt case was adopted by this Court, and made its opinion. The citations relied upon by the Chief Justice are these:

"Judge Ramage pointed out that the Act of 1930 made `no discrimination whatsoever in favor of the owners of items who sent them through a bank for collection as against those owners who presented them in person to the drawee bank,' and that `section 13 dealing with insolvency and preference gives all classes alike — "the owners of the items" — the same right of priority.'"

The Chief Justice continues his quotation from the decree of Judge Ramage in these words:

"Judge Ramage also said in his decree that the 1930 Act `is not limited to cases of collection, but embraces the whole subject of collection and payment,' and that the Act `provides for one very common feature or incident to the mode of such payments, when such payment is made by giving a draft on another bank which is no good and fails to produce actual payment because of the intervening insolvency of the bank giving such draft.'"

Concede, if you please, all that is quoted from the decree of Judge Ramage, the sufficient answer is that it has no application to the facts of our case. At the very outset of his decree Judge Ramage said: "The question involved iswhether, when items are sent for collection to the bank uponwhich they are drawn, and such items are charged to thedrawers or depositors and paid by the drawee bank by itscashier check, * * * and the drawee bank became insolventbefore the check on the other bank was paid, whereby payment of the last-mentioned check was refused, theowners of the items are entitled to priority of payment oronly participate pro rata with other creditors." (Italics added.)

An examination of the transcript of record discloses that the items involved in the Witt case had been sent to the Bank of Swansea for collection.

Such is not the fact in the present case. It follows that the remarks of the Circuit Judge quoted by the Chief Justice have no application to our case, and are, so far as the Wittcase is concerned, obiter dicta. They are unnecessary to the determination of that case, and not germane to the question involved in that case, as it is stated in the Circuit Decree. Hence they are not authority in this case.