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more and Washington. So might the Railways and bridges, and may impose such exacroad Company, under authority from the State, if it saw fit to do so. These are positions which must be conceded. No one has ever doubted them.

This unlimited right of the State to charge or to authorize others to charge toll, freight or fare for transportation on its roads, canals and railroads, arises from the simple fact that they are its own works,, or constructed under its authority. It gives them being. It has a right to exact compensation for their use. It has a discretion as to the amount of that compensation. That discretion is a legislative a sovereign-discretion, and in its very nature is unrestricted and uncontrolled. The security of the public against any abuse of this discretion resides in the responsibility to the public of those who, for the time being, are officially invested with it. In this respect it is like all other legislative power when not controlled by specific constitutional provisions, and the courts cannot presume that it will be exercised detrimentally.

It

tions for their use as it sees fit; on the other hand, it is conceded that it cannot regulate or impede interstate commerce, nor discriminate between its own citizens and *those of [*473 other States, prejudicially to the latter. The problem is to reconcile the two propositions; and as the latter arises from the provisions of the Constitution of the United States and is, therefore, paramount, the question is practically reduced to this: what amounts to a regulation of commerce between the States, or to a discrimination against the citizens of other States? This is often difficult to determine. In view, however, of the very plenary powers which a State has always been conceded to have over its own territory, its highways, its franchises and its corporations, we cannot regard the stipulation in question as amounting to either of these unconstitutional Acts. It is not within the category of such Acts. may, incidentally, affect transportation, it is true; but so does every burden or tax imposed on corporations or persons engaged in that So long, therefore, as it is conceded (as it business. Such burdens, however, are imposed seems to us it must be) that the power to diverso intuitu, and in the exercise of an uncharge for transportation, and the amount of doubted power. The State is conceded to posthe charge, are absolutely within the control sess the power to tax its corporations; and yet of the State, how can it matter what is done every tax imposed on a carrier corporation afwith the money, whether it goes to the State fects more or less the charges it is compelled 472*] or to the stockholders of a private *cor- to make upon its customers. So, the State poration? As before said, the State could has an undoubted power to exact a bonus for have built the road itself and charged any the grant of a franchise, payable in advance rate it chose, and could thus have filled the or in futuro; and yet that bonus will necescoffers of its treasury without being questioned sarily affect the charge upon the public which therefor. How does the case differ, in a con- the donee of the franchise will be obliged to stitutional point of view, when it authorizes impose. The stipulated payment in this case, its private citizens to build the road and re-indeed, is nothing more nor less than a bonus; serves for its own use a portion of the earn- and so long as the rates of transportation ings? We are unable to see any distinction are entirely discretionary with the States, such between the two cases. In our judgment there a stipulation is clearly within their reserved is no solid distinction. If the State, as a con- powers. sideration of the franchise, had stipulated that it should have all the passenger money, and that the corporation should have only the freight for the transportation of merchandise, and the corporation had agreed to those terms, it would have been the same thing. It is simply the exercise by the State of absolute control over its own property and prerogatives.

This exercise of power on the part of a State is very different from the imposition of a tax or duty upon the movements or operations of commerce between the States. Such an imposition, whether relating to persons or goods, we have decided the States cannot make, because it would be a regulation of commerce between the States in a matter in which uniformity is essential to the rights of all and, therefore, requiring the exclusive legislation of Congress.

Of course, the question will be asked, and pertinently asked: has the public no remedy against exorbitant fares and freights exacted by state lines of transportation? We cannot entirely shut our eyes to the argument ab inconvenienti. But it may also be asked: has the public any remedy against exorbitant fares and freights exacted by steamship lines at sea? Maritime transportation is almost as exclusively monopolized by them as land transportation is by the railroads. In their case the only relief found is in the *exist [*474 ence or fear of competition. The same kind of relief should avail in reference to land transportation.

Whether, in addition to this, Congress, under the power to establish post-roads, to regulate commerce with foreign nations, and among the several States, and to provide for the comCrandall v. Nevada, 6 Wall., 42, 18 L. ed. mon defense and general welfare, has authority 746; Freight Tax case, 15 Wall., 232, 279, 21 L. to establish and facilitate the means of comed. 146, 163. It is a tax because of the trans- munication between the different parts of the portation, and is, therefore, virtually a tax country, and thus to counteract the appreon the transportation, and not in any sense hended impediments referred to, is a question a compensation therefor, or for the franchises which has exercised the profoundest minds of enjoyed by the corporation that performs it. the country. This power was formerly exerIt is often difficult to draw the line between cised in the construction of the Cumberland the power of the State and the prohibitions of road and other similar works. It has more rethe Constitution. Whilst it is commonly said cently been exercised, though mostly on nathat the State has absolute control over the tional territory, in the establishment of railcorporations of its own creation, and may im-road communication with the Pacific coast. pose upon them such conditions as it pleases; But it is to be hoped that no occasion will and like control over its own territory, high-ever arise to call for any general exercise of

to such creditors, and such drafts were given by
him with intent to give preferences forbidden by
the Bankrupt Act, and were accepted by the draw-
ees in fraud of that Act, the assignee in bankruptcy
may recover of the drawees the amount they owed
the insolvent at the time such drafts were drawn,
although they have accepted such drafts and agreed
to pay the same to the creditors in whose favor
the drafts were drawn.

tract, and no action will lie upon them in favor of
those making claim to them. When the drawees
pay to the assignee the debt due from them to the
bankrupt, they will pay it to the party entitled to
receive it, and will have discharged their liabil-
ity.
[No. 227.]

2. Such acceptances were a part of an illegal con

such a power, if it exists. It can hardly be supposed that individual States, as far as they have reserved or still possess the power to interfere, will be so regardless of their own interests as to allow an obstructive policy to prevail. If, however, state institutions should so combine or become so consolidated and powerful as, under cover of irrevocable franchises already granted, to acquire absolute control over the transportation of the country and should exercise it injuriously to the public interest, every constitutional power of Congress would undoubtedly be invoked for relief. Some of the States are so situated as to put it in their power, or that of their transporta-Argued Apr. 15, 1875. Decided May 3, 1875. tion lines, to interpose formidable obstacles to the free movement of commerce of the country. Should any such system of exactions be established in these States, as materially to impede the passage of produce, merchandise or travel, from one part of the country to another, it is hardly to be supposed that the case is a casus omissus in the Constitution. Commercially, this is but one country, and intercourse between all its parts should be as free as due compensation to the carrier interest will allow. This is demanded by the "general welfare," and is dictated by the spirit of the Con475*] stitution at least. *Any local interference with it will demand from the National

Legislature the exercise of all the just powers

with which it is clothed.

But whether the power to afford relief from onerous exactions for transportation does or does not exist in the General Government, we are bound to sustain the constitutional powers and prerogatives of the States, as well as those of the United States, whenever they are brought before us for adjudication, no matter what may be the consequences. And, in the case before us, we are of opinion that these powers have not been transcended.

The judgment of the Court of Appeals of Maryland is affirmed.

Mr. Justice Miller, dissenting:

I am of opinion that the Statute of Maryland requiring the Railroad Company to pay into the Treasury of the State one fifth of the amount received by it from passengers on the branch of the road between Baltimore and Washington, confined as it is exclusively to passengers on that branch of the road, was intended to raise a revenue for the State from all persons coming to Washington by rail, and had that effect for twenty-five years, and that the statute is, therefore, void within the principle laid down by this court in Crandall v. Nevada, 6 Wall., 35, 18 L. ed., 745.

HARRY FOX et al., Plffs. in Err.,

v.

EDWIN W. GARDNER, Assignee of Nicholas Young, a Bankrupt.

(See S. C., 21 Wall., 475–480.)

IN ERROR to the Circuit Court of the United

consin.

The case is fully stated in the opinion of the court.

Messrs. B. G. Caulfield and R. T. Merrick, for plaintiffs in error:

The doctrine of the court below is contrary to common justice and the established principles of law.

Simpson v. Dall, 3 Wall. 460, 18 L. ed. 265.

Adler v. Fenton, 24 How., 407, 16 L. ed. 696;

Mr. W. F. Vilas, for defendant in error:
The novation or contract of substitution of

one creditor for another, is a discharge or legal
payment only when the contract is valid and
binding upon the first creditor.

The assignee is now such first creditor, by representation; and his representation being not alone of the bankrupt, but of his creditors, he has rights superior to those of the bankrupt. He may attack fraudulent preferences, which the bankrupt could not. A contract in favor of a creditor may be binding on the bankrupt, and void as to his assignee.

It is not binding on his assignee, because it was a contract to accomplish a result prohibited by law. It was a fraudulent agreement to the injury of the bankrupt's general creditors, and it is their injury which gives the assignee his right of defeat to it.

Contracts made to accomplish a fraudulent or an illegal purpose, are in law obligatory on neither party.

Randall v. Howard, 2 Black, 585, 17 L. ed. 269; Hannay v. Eve, 3 Cranch, 242; Kennett v. Chambers, 14 How., 38; Bank of U. S. v. Owens, 2 Pet., 527; Woodworth v. Bennett, 43 N. Y., 273; Foote v. Emerson, 10 Vt., 338; Griswold v. Waddington, 16 Johns., 438; Fowler v. Scully, 72 Penn., 456.

The Bankrupt Act, § 14, expressly vests in the assignee title to all property conveyed by the bankrupt in favor of his creditors. A debt against another is as much property as a movable chattel, and if conveyed in fraud of creditors may, of course, be recovered at their instance. The Act vests the title in the assignee, upon the assignment made to him.

Mr. Justice Hunt delivered the opinion of

Assignee in bankruptcy, when may recover debt the court: -illegal contract.

1. Where one who gave drafts on another to his creditors in payment of his debts was insolvent. and such insolvency was known to the drawees and

The plaintiffs in error, under the partnership name of Fox & Howard, were railroad contractors on a portion of the Chicago and Northwestern Railway. The defendant in error is

the assignee in bankruptcy of one Nicholas | be benefited," does not create a qualification Young, a sub-contractor under them.

The contract was made October 4, 1870; the
work was finished about November 24, 1870;
and full payment became due on December 15,
1870.
Subsequently, Young was adjudged a
bankrupt in pursuance of a petition in bank-
ruptcy filed against him on the 7th of January,
1871; and on the 12th of September, 1872, the
defendant in error, as his assignee, instituted
the proceedings which are now before this
court for review, to compel the payment of an
alleged balance due from the plaintiffs in error
to Young.

Under the rulings of the district court, which
were affirmed by the circuit court, the jury
rendered a verdict in favor of the assignee for
the sum of $4,691.47, of which the principal
items were, $3,692.80, claimed by the plaintiff's
in error to have been paid by them to the use
of Young before the filing of the petition in
bankruptcy, in pursuance of acceptances by
them of Young's drafts to that amount, and
$502.20 of orders drawn on Young by various
small creditors in favor of one Burroughs, and
as is claimed, with Young's consent, taken by
the plaintiffs and charged up against Young,
and credited to Burroughs, before the institu-
tion of the proceedings in bankruptcy. The
main controversy in the case is as to the va-
lidity of these payments under the provisions of
the Bankrupt Law of the United States.

To meet these claims the assignee proved that when the bankrupt gave the drafts, which are claimed to operate as payments, he was insolvent, and that such insolvency was known to Fox & Howard, and to the creditors to whom the drafts were given; that they were given by the bankrupt with intent to afford preferences forbidden by the Bankrupt Act, and that they were accepted by Fox & Howard in fraud

of that Act.

The contention of the plaintiffs in error is found in the following extract from the brief of their counsel:

"That the court below was mistaken in its construction of the 35th section of the Bankrupt Act. That section does not authorize suits by an assignee against debtors of the bankrupt who have discharged their debts to him, or paid money to other persons for his use, within the period of four or six months specified in the Act. It only authorizes suits against such creditors of the bankrupt as have fraudulently received such payments. Only the parties benefited by a fraudulent preference under the Bankrupt Act are liable to the assignee.

or limitation of power. There is no implica-
tion that the party paying is not also liable.
The words are those of caution merely, and
give the assignee no power that he would not
possess if they had been omitted from the stat-
ute. In the present case, the property or
value attempted to be transferred belonged orig-
inally to the bankrupt. On the adjudication
of bankruptcy, the possession and ownership
of the same were transferred to the assignee.
Sec. 14. The attempted transfer by the bank-
rupt was fraudulent and void. It follows, logi-
cally, that the debtor yet holds it for the as-
signee, and that the assignee may sue him for
its recovery. See, Bolander v. Gentry, 36 Cal.,
105; Hanson v. Herrick, 100 Mass., 323.
Upon principle, there would seem to be
scarcely room for doubt upon the point before
The pretended payment, or transfer or
substitution, by the debtor of the bankrupt,
was in fraud of the Act and illegal. It was
a transaction expressly forbidden by the stat-
ute. The jury found that the insolvency of
Young was known to Fox & Howard, and to
the creditors by whom the drafts were [*479
taken at the time they were taken; that they
were given by the bankrupt with intent to cre-
ate forbidden preferences, and that they were
accepted by Fox & Howard in fraud of the Act.
This is a transaction expressly condemned by
the statute.

us.

It amounts simply to this: the debtor of the bankrupt seeks to protect himself against an admitted debt by pleading a payment or substitution which was in fraud of the Bankrupt Act and, therefore, void. The proposition carries its refutation on its face. Fox & Howard were indebted to the bankrupt, and can only discharge themselves by a payment or satisfaction which the law will sanction. A payment or transfer condemned by the express terms of the Bankrupt Act, cannot protect them.

It is to be observed, also, that when the bankruptcy proceedings were begun, Fox & Howard had never, in fact, paid to Burroughs and his associates the amount of the drafts accepted by them. They had simply promised to pay them if there should prove, upon settlement of their accounts with the bankrupt, to be so much money due to him. This presents them in a still less favorable condition. They owe money to the bankrupt. They are sued for it by his assignee in bankruptcy. As a defense, they allege that they have made an agreement with Burroughs and others, with the assent of The doctrine of the district court, it is said, them. They allege an agreement merely. This the bankrupt, to pay the amount of the debt to leads to the most disastrous consequences, for agreement has already been shown to be illegal. if a debtor cannot respect the orders of a man The assignee, representing the creditors as in embarrassed circumstances except at his peril, then he will necessarily precipitate the condition of insolvency and bankruptcy, which a different course might have prevented. It is believed that this doctrine is contrary to common justice and the established principles of law." The 35th section of the Bankrupt Act provides that a transaction like the one we have presented "Shall be void, and the assignee may recover the property or the value of it from the person so receiving it or so to be benefited."

The language of the statute authorizing the assignee "To recover the property, or the value of it, from the person so receiving it or so to

well as the bankrupt, is authorized to set up such illegality. The bankrupt, perhaps, could take no action to avoid this agreement, but his assignee has undoubted authority to do so. When the assignee sets up this illegality and sustains it by proof of the facts referred to, the whole foundation of the defense falls.

It is well settled that a debtor may pay a just debt to his creditor at any time before proceedings in bankruptcy are taken. It is also true that a valid agreement to substitute another person as creditor may be made, and may be pleaded as a discharge of the debt in

480] the nature of payment. It is not and the production of his appointment and the de-
however, payment in fact, and is binding only | cree dissolving the association.
when the contract is fair and honest, and bind-
ing upon the first creditor.

[No. 805.]

Argued Apr. 20, 21, 1875. Decided May 3, 1875.

The right of an insolvent person, before proceedings are commenced against him, to pay a just debt, honestly to sell property for which IN ERROR to the Supreme Court of Alabama. On the 17th day of April, in the year 1867, a just equivalent is received, to borrow money the appellee, Colby, commenced an action at and give a valid security therefor, are all rec-law by attachment against the First National ognized by the Bankrupt Act, and all depend Bank of Selma, for the sum of $4,800. This upon the same principle. In each case the transaction must be honest, free from all in-cuit Court of Dallas County, in this state, and attachment was regularly issued from the Cirtent to defraud or delay creditors, or to give regularly executed by a levy on lands belonga preference or to impair the estate. See, Cook v. Tullis, 18 Wall., 332, 21 L. ed. 933; ing to said Bank, on the day of its issuance. Tiffany v. Boat Inst., 18 Wall., 375, 21 L. ed. The bill of exceptions taken at the trial showed

868.

If there is fraud, trickery or intent to delay or to prefer one creditor over others, the transaction cannot stand.

It is urged that Fox & Howard are liable upon the drafts to the creditors of Young, in whose favor the acceptances were given. Should this be so, it would but add another to that large class of cases in which persons endeavor ing to defraud others are caught in their own devices. The law looks with no particular fav

or on this class of sufferers.

that said Bank ceased to do business on the

16th day of April, 1867, and had, on the 16th day of the same month, refused and failed to pay a draft of the United States for $75,000. It further appears that the President of said Bank had absconded on the 17th day of April, 1867, and on that day said Corporation's house of business and its assets were taken possession of by General Swayne, then commanding the Federal forces in this State, under instructions of the Secretary of the Treasury of the United States; and upon examination, the cash In the present case, however, there seems to account of said Bank was found deficient in the sum of about $200,000. It was also shown be no such difficulty. The acceptances were a part of an illegal contract, and no action will that said Bank was chartered on the 24th day lie upon them in favor of those making claim of August, 1865, under authority of an Act of to them. They are guilty parties to the trans-Congress of the United States, entitled "An action, and can maintain no action to enforce Act to Provide a National Currency, Secured Nellis v. Clark, 20 Wend., 24, 4 Hill, 424; by a Pledge of the United States Bonds, and Randall v. Howard, 2 Black, 585, 17 L. ed. 269; Thereof." This Act was approved June 3, to Provide for the Circulation and Redemption Kennett v. Chambers, 14 How., 38. The law 1864. After the levy of said attachment, viz.: leaves these parties where it finds them, giving aid to neither. The drafts cannot pass into the hands of bona fide holders, as, by the terms of the acceptances, they are to remain in the possession of Fox & Howard until they can be paid by authority of law. When Fox & Howard pay to the assignee the debt due from them to Young, they will pay it to the party entitled to receive it, and will have discharged their liability.

it.

Judgment affirmed.

THE FIRST NATIONAL BANK OF SEL-
MA, Plff. in Err.,

บ.

GEORGE W. COLBY.

(See S. C., 21 Wall., 609-616.)

on the first day of June, 1867, by decree of the
District Court of the United States for the
Middle District of Alabama. "All the rights,
privileges and franchises of said association
derived from the Act of Congress," were for-
feited, and said association, called the First
National Bank of Selma, was adjudged to be
dissolved. The record of the proceedings in
said district court declaring the forfeiture and
dissolution of said charter thereof, were given
in evidence to the jury on said trial. It was
likewise shown that Cornelius Cadle, Jr., had
been regularly appointed receiver for said as-
sociation, as required by law, on the 3d day
of June, 1867. The plaintiff also proved by
his certificate of deposit, the amount of his
deposit in said Bank to be the sum for which
the attachment had been sued out; that is,
$4,800. This was the substance of all the evi-
dence offered on the trial. On this evi-

National bank-rights of receiver-effect of de-dence, said Cadle, as receiver, moved the court

cree-discharging attachment.

1. The property of a national bank organized under the Act of Congress of June 3, 1864, attached at the suit of an individual creditor after the bank has become insolvent, cannot be subjected to sale for the payment of his demand, against the claim for the property by a receiver of the bank subsequently appointed.

to dissolve said attachment, and also to quash and discharge the levy of the same on the prop erty of said Bank. These motions the court refused; and said Cadle, as such receiver as aforesaid, excepted to the ruling of the court thereon. And thereupon the court charged the jury, that if they believed the evidence, they must find for the plaintiff the amount of the 2. A suit against a national bank to enforce the collection of a demand is abated by a decree of a certificate and the interest. This charge was District Court of the United States dissolving the excepted to by said receiver. Cadle, as corporation and forfeiting its rights and franchises ceiver as aforesaid, then asked the court to rendered upon an information filed by the Comp-charge the converse of this proposition; that is:

troller of the Currency.

3. The receiver may apply to the state court to discharge the attachment, on proof of the facts, Headnotes by Mr. Justice FIELD.

re

"If the jury believed all the evidence offered
in this cause, they must find for the defend-
ant." This charge the court refused, and the
receiver, Cadle, excepted as before. There was

ANN

a verdict and judgment for the plaintiff for $5,632.33 and costs, and a venditioni exponas was ordered to issue to the sheriff, to sell the property levied on.

From this judgment an appeal was taken by Cadle to the Supreme Court of Alabama.

The Supreme Court affirmed the judgment of the court below, whereupon Cadle, the receiver, petitioned for a writ of error, under the 25th section, which was allowed him by the Chief Justice of said court.

Messrs. P. Phillips and Charles Case, for plaintiff in error.

Mr. Alexander White, for defendant in

error.

Mr. Justice Field delivered the opinion of the court:

Two questions are presented in this case for our determination: 1, whether the property of a national bank organized under the Act of Congress of June 3d, 1864, 13 Stat. at L., 99, attached at the suit of an individual creditor, after the bank has become insolvent, can be subjected to sale for the payment of his demand, against the claim for the property by a receiver of the bank subsequently appointed; and 2, whether a suit against a national bank to enforce the collection of a demand is abated by a decree dissolving the corporation and forfeiting its rights and franchises.

the United States any deficiency in redeeming its notes, shall make a ratable dividend of the money on all claims proved to his satisfaction or adjudicated in a court of competent jurisdiction.

this

The 52d section, further to secure equality, declares that all transfers by an insolvent bank of its property of every kind, and all payments of money made after the commission of an act of insolvency, or in contemplation thereof, with a view to prevent the application of its assets in the manner prescribed by the Act, or "With the view to the preference of one creditor over another, except in the payment of its circulating notes, shall be utterly null and void."

There is in these provisions a clear manifestation of a design on the part of Congress: 1, to secure the government for the payment of the notes, not only by requiring in advance of their issue a deposit of bonds of the United States, but by giving to the government a first lien for any deficiency that may arise on all the assets subsequently acquired by the insolvent bank; and, 2, to secure the assets of the bank for ratable distribution among its general creditors.

*This design would be defeated if a [*614 preference in the application of the assets could be obtained by adversary proceedings. The priority of the United States and the rataTo the first question the Act of Congress fur-ble distribution among the general creditors, nishes an answer in the negative; to the second, the general law respecting corporations gives one in the affirmative.

The Act of Congress prescribes the conditions upon which national banks shall be created; the powers they shall possess; and the consequences of their failure to meet their obligations. All persons dealing with these institutions can only acquire and enforce rights against them under the limitations there desig

nated.

The object of the Act, as its title imports, was to create a national currency secured by a pledge of the bonds of the United States. And to that end it requires security in government bonds for all notes issued; and in case any bank fails to redeem its notes on demand, it provides for their payment on presentation at the Treasury of the United States.

613*] *To make good any deficiency which may exist in the proceeds of the bonds to meet the amount expended in paying the notes of a bank, the Act declares that "The United States shall have a first and paramount lien upon all the assets" of the association. Whatever disposition, therefore, may be made of the property of an insolvent bank, the lien of the United States thereon must exist until the government is fully re-imbursed.

so studiously provided for in the Act, would in that case be lost. As justly observed by counsel, if preference was left to the race of diligence, creditors living remote from the location of the bank would always be distanced in the contest, and the equality promised to them by the Act would be a mere mockery.

In the present case the record shows that on 15th of April, 1867, a treasury draft of the United States was presented to the Bank and its payment was refused; that on the morning of the following day, the 16th, the Bank did not open for business; that during that day possession was taken of the Bank-by which we suppose is meant its place of business, its property and effects and its books and papersby the military authorities of the United States under instructions from the Secretary of the Treasury; that on the 17th its president absconded; that an examination had that day into its affairs showed a deficiency in its cash account of $200,000; and that on the 30th of April, a receiver of its effects was appointed by the Comptroller of the Currency. Subsequently, on the first of June, 1867, on an information filed by the Comptroller, a decree was entered in the District Court of the United States forfeiting all its rights, franchises and privileges and adjudging its dissolution.

As to the general creditors, the Act evidently Whilst the Bank was in possession of the intends to secure equality among them in the military authorities, namely: on the 17th of division of the proceeds of the property of the April, 1867, the plaintiff sued out an attachBank. The 50th section provides for the ap-ment against it upon an affidavit alleging that pointment of a receiver of an insolvent bank, it was indebted to him in the sum of $4,800, who shall take possession of its assets, collect and that it had moneys, property or effects its debts, and upon the order of a court of record sell its real and personal property and pay over the money to the Treasury of the United States, subject to the order of the Comptroller of the Currency; that the comptroller shall then advertise for creditors to present their claims against the association, and after making provision for refunding to

liable to satisfy its debts which it fraudulently withheld. The attachment was levied the same day on its real property, consisting of a dwelling house and grist mill. On the 22d of May following, a declaration was filed in the case, in which the plaintiff alleged an indebtedness of the Bank to him in the amount stated, on three certificates of deposit.

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