Page:Federal Reporter, 1st Series, Volume 7.djvu/636

 624 FBDBBAL BEPOBTEB. �(6) That afterwards, and before tho maturity of said certiflcates, the plalntiff, believing that said certiflcates were duly made and Issued by said defendant under and by yirtue of the provisions of said order of court, and that the same were of the series of receiver's certiflcates authorized to be issued by said order, and that the same were made and issued by said defendant for iron rails fumished for constructing said road, and relying thereon, and upon the said statements and representa- tions contained and made in said certiflcate, purchased the said certifl- cates from the payee in good faith and in the usual course of business, and without notice or knowledge that the said statements and represen- tations were not true, and paid and advanced to said company therefor the sum of $25,000, that being the amount expressd upon their face as due and payable thereon. �(6) That after maturity of said certiflcates plaintifE demanded payment, which was refused ; and that afterwards plaintifE instituted proceedings to enforce the lien of said certiflcates upon said line of railroad, etc., in the district court of Clinton county, lowa ; and that said court, by it» judgment, refused to enforce the said lien, or compel the payment of said certiflcates, which said judgment or decree was afterwards afflrmed by the supreme court of the state of lowa. �(7) It is further averred as followa: "And the plaintifE further aay» that said defendant wrongfully, fraudulently, and falsely certifled and represented, in and by said certiflcates, that the same were issued by him in pursuance of said order heretofore ref erred to, and that they were each of a series of receiver's certiflcates authorized to be issued by such order, and constituted a flrst lien upon the said line of railroad, its apparte- nances, franchises, and income, and that they were issued for iron rails f urnished for constructing said road, whereas in truth and in fact the said certiflcates were not made and issued by said defendant under and in pur- suance of said order ; nor were they of the series of receiver's certiflcates authorized to be issued by such order ; nor did they constitute a flrst lien upon the said line of railroad, its appurtences, franchises, and income ; nor were they issued f6r iron rails furnished for constructing said road ;. and the plaintifE further says that by reason of the premises it has sus- tained damage in the sum of $30,000." �(8) The second count of the petition repeats the foregoing allegations, in substance, omitting the allegation as to fraudulent representation, and charges that the representations were untrue, and that because they were untrue the certiflcates were invalid, and the plaintifl sustained the dam- age for which the defendant is liable. �The grounds of demurrer are stated in the opinion. �E. S, Bailey, for plaintifif. �Geo. B. Young, for defendant. �MoCeaey, g. J. We will consider the grounds of demurrer to the first count in the order in which they are presented by counsel. �1. It is iusisted that the facts alleged do not constitut» ��� �