Wering v. Mobile, 8 Wall. 110, 19 L. ed. $62.

The right to bring an article into a state earries with it the right to sell it. Spellman v. New Orleans, 45 Fed. Rep. ➜, 3 Inters. Com. Rep. 575; Re Harmon, 43 Fed. Rep. 372.

The buying, selling, and transportation ineident thereto, constitute commerce.

United States v. E. C. Knight Co. 156 U. S. 1, 39 L. ed. 325; Lehigh Valley R. Co. v. Pennsylvania, 145 U. S. 192, 36 L. ed. 672, 4 Inters. Com. Rep. 87; Re Rahrer, 140 U. S. 545, 35 L. ed. 572; McCall v. California, 136 U. S. 104, 34 L. ed. 392; Bowman v. Chicago & N. W. R. Co. 125 U. S. 465, 31 L. ed. 700, 1 Inters. Com. Rep. 823; Welton v. Missouri, 91 U. S. 275, 23 L. ed. 347; W. A. Vandercook Co. v. Vance, 80 Fed. Rep. 786.

The statutes of the state intended to regulate or tax, or to impose any other restrictions upon, the transmission of persons or property, or telegraphic messages from one state to another, are void.

Wabash, St. L. & P. R. Co. v. Illinois, 118 U. S. 557, 30 L. ed. 244, 1 Inters. Com. Rep. 31; Pickard v. Pullman Southern Car Co. 117 U. S. 34, 29 L. ed. 785.

No state can impose a tax on persons engaged in the sale of goods in such state, which are introduced into the state from other states.

Walling v. Michigan, 116 U. S. 446, 29 L. ed. 691; Cook v. Pennsylvania, 97 U. S. 566, 24 L. ed. 1015; Hall v. DeCuir, 95 U. S. 485, 24 L. ed. 547; Hannibal & St. J. R. Co. v. Husen, 95 U. S. 465, 24 L. ed. 527; Welton v. Missouri, 91 U. S. 275, 23 L. ed. 347; Ward v. Maryland, 12 Wall. 418, 20 L. ed. 449; Re Lebolt, 77 Fed. Rep. 587.

No state can, under any pretense whatever, interfere with the right of any person who engages in interstate commerce, whether in the sale of goods introduced into the state from other states, or in soliciting orders for goods to be so introduced.

er v. Texas, 128 U. S. 129, 32 L. ed. 368, 2
Inters. Com. Rep. 241; Philadelphia & 9.
Mail S. S. Co. v. Pennsylvania, 122 U. S.
326, 30 L. ed. 1200, 1 Inters. Com. Rep. 308;
Corson v. Maryland, 120 U. S. 502, 30 L.
ed. 699, 1 Inters. Com. Rep. 50; Robbins v.
Shelby County Taxing Dist. 120 U. S. 489,
30 L. ed. 694, 1 Inters. Com. Rep. 45; Moran
v. New Orleans, 112 U. S. 69, 28 L. ed. 653;
Leloup v. Port of Mobile, 127 U. S. 640, 32
L. ed. 311, 2 Inters. Com. Rep. 134; The
Daniel Ball, 10 Wall. 557, 19 L. ed. 999;
Sinnot v. Davenport, 22 How. 227, 16 L. ed.
243; Smith v. Turner, 7 How. 283, 12 L. ed.
702; Re Bell, 25 U. S. App. 379, 68 Fed.
Rep. 183, 15 C. C. A. 360.

The conduct and method of doing business
by the members of this Traders' Live Stock
Exchange is an interference with interstate
commerce, and the association is illegal.

Allgeyer v. Louisiana, 165 U. S. 578, 41
L. ed. 832; United States v. Trans-Missouri
Freight Asso. 166 U. S. 290, 41 L. ed. 1007;
Re Rahrer, 140 U. S. 545, 35 L. ed. 572.

*Mr. Justice Peckham, after stating the [612] facts, delivered the opinion of the court:

There is really no dispute in regard to the facts in the case. Although the bill contains various allegations in regard to conspiracies, agreements, and combinations in restraint of trade and in violation of the Federal statute, yet there is no evidence of any act on the part of the defendants preventing access to the yards or preventing purchases and sales of cattle by anyone, other than as such sales may be prevented by the mere refusal on the part of the defendants as "yard traders" to do business with those who are also yard traders, but are not members of the exchange, or with commission merchants where such commission merchants themselves do business with yard traders who are not members of the exchange. In other words, there is no evidence and really no charge against the defendants that they have Ex parte Loeb, 72 Fed. Rep. 657; Southern done anything other than to form this exR. Co. v. Asheville, 69 Fed. Rep. 359; Exchange and adopt and enforce the rules menparte Hough, 69 Fed. Rep. 330, 5 Inters. Com. Rep. 327; Re Minor, 69 Fed. Rep. 233, 5 Inters. Com. Rep. 329; Aultman, M. & Co. v. Holder, 68 Fed. Rep. 467; Ex parte Scott, 66 Fed. Rep. 45; Re Schechter, 63 Fed. Rep. 695, 4 Inters. Com. Rep. 849; Re Mitchell, 62 Fed. Rep. 576, 4 Inters. Com. Rep. 767; Re Worthen, 58 Fed. Rep. 467, 4 Inters. Com. Rep. 484; Re Rozelle, 57 Fed. Rep. 155; Re Ware, 53 Fed. Rep. 783; Re Sanders, 52 Fed. Rep. 802, 18 L. R. A. 549, 4 Inters. Com. Rep. 305: Re McAllister, 51 Fed. Rep. 282; Re Nichols, 48 Fed. Rep. 164; Re Tyerman, 48 Fed. Rep. 167; Re Houston, 47 Fed. Rep. 539, 14 L. R. A. 719; Re Kimmel, 41 Fed. Rep. 775, 3 Inters. Com. Rep. 114; Adams Exp. Co. v. Ohio State Auditor, 165 U. S. 194, 41 L. ed. 683; Osborne v. Florida, 164 U. S. 650, 41 L. ed. 586; Brennan v. Titusville, 153 U. S. 289, 38 L. ed. 719, 4 Inters. Com. Rep. 658; Harman v. Chicago, 147 U. S. 396, 37 L. ed. 216; Crutcher v. Kentucky, 141 U. S. 47, 35 L. ed. 649; Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18, 35 L. ed. 613, 3 Inters. Com. Rep. 595; Ash

tioned above, and the question is whether by
their adoption and by peacefully carrying
them out without threats and without vio-
lence, but by the mere refusal to do business
with those who will not respect their rules,
there is a violation of the Federal statute.

This case differs from that of Hopkins v.
United States, ante, 290, in the fact that
these defendants are themselves purchasers
of cattle on the market, while the defendants
in the Hopkins Case were only commission
merchants who sold the cattle upon commis-
sion as a compensation for their services.

Counsel for the government assert that any agreement or combination among buyers of cattle coming from other states, of the nature of the by-laws in question, is an agreement or combination in restraint of interstate trade or commerce.

The facts first set forth in the complainants' bill, upon which to base the claim that the business of defendants is interstate commerce, we have already decided in the Hopkins Case to be immaterial. The particular situation of the yards, partly in Kansas and



partly in Missouri, we there held was a fact without any weight, and one which did not [613]make business interstate commerce which otherwise would not partake of that charac


There remain in the bill of the complainants the allegations that the cattle come from various states and are placed on sale at these stock yards which form the only available market for many miles around, and that they are sold by the commission merchants and are bought in large numbers by the defendants who have entered into what the complainants allege to be a contract, combination, and conspiracy in restraint of trade and commerce among the several states, which contract, etc., it is alleged is carried out by defendants unlawfully and oppressively refusing to purchase cattle from a commission merchant who sells or purchases cattle from any speculator (yard trader) who is not a member of the exchange; and it is further alleged that by these means the traffic in cattle at the Kansas City stock yards is interfered with, hindered, and restrained, and extra expense and loss to the owner incurred, and that thereby the defendants have placed an obstruction and embargo on the marketing of cattle shipped from other states. All these results are alleged to flow from the agreement among the defendants as contained in the by-laws of their association, particularly those numbered ten, eleven, twelve, and thirteen, copies of which are set forth in the statement of facts herein.

with its conditions of membership, and may
remain such as long as he comports himself
in accordance with its laws. A lessening of
sary nor direct effect of its formation, and in
the amount of the trade is neither the neces-
truth the amount of that trade has greatly
increased since the association was formed,
and there is not the slightest evidence that
the market prices of cattle have been lowered
by reason of its existence. There is no fea-
The defendants are engaged in buying what
ture of monopoly in the whole transaction.
are called "stockers and feeders;" being cat-
tle not intended for any other market, and
the demand for which is purely local. They
have arrived at their final destination when
offered for sale, and there is free and full
the members of the exchange, as well as be-
competition for their purchase between all
tween them and all buyers not members
thereof, who are not also yard traders.
With the latter the defendants will not com-
pete, nor will they buy of the commission
men if the latter continue to sell cattle to
such yard traders.

Have the defendants the right to agree to
conduct their own private business in this

Whether there is any violation of the act of Congress by the adoption and enforcement of the other rules of the association, above It is first contended on the part of the apreferred to, will be considered hereafter. state commerce or trade, and that therefore pellants that they are not engaged in inter-[615] There is no evidence that these defendants their agreement is not a violation of the act. have in any manner other than by the rules They urge that the cattle, by being taken above mentioned hindered or impeded others from the cars in which they were transin shipping, trading, or selling their stock, ported and placed in the various pens hired or that they have in any way interfered with by commission merchants at the cattle yards the freedom of access to the stock yards of of Kansas City, and there set up for sale, any and all other traders and purchasers, have thereby been commingled with the genor hindered their obtaining the same facil-eral mass of other property in the state, and ities which were therein afforded by the stock-yards company to the defendants as members of the exchange, and we think the evidence does not tend to show that the above results have flowed from the adoption and enforcement of the rules and regulations referred to.

In regard to rule 10, the question is
whether, without a violation of the act of
Congress, persons who are engaged in the
common business as yard traders of buying
[614] cattle at the *Kansas City stock yards, which
come from different states, may agree among
themselves that they will form an associa-
tion for the better conduct of their busi-
ness, and that they will not transact busi-
ness with other yard traders who are not
members, nor will they buy cattle from those
who also sell to yard traders who are r t
members of the association.

It will be remembered that the association
Those who are mem-
does no business itself.
bers thereof compete among themselves and
with others who are not members, for the
purchase of the cattle, while the association
itself has nothing whatever to do with trans-
with fixing the prices for
portation nor
which the cattle may be purchased or there-
after sold. Any yard trader can become a
member of the association upon complying
U. S., Book 43.
171 U. S.


that their interstate commercial character
has ceased within the decisions of this court
in Brown v. Houston, 114 U. S. 622 [29:
257], and Pittsburg & S. Coal Company ▼.
Bates, 156 U. S. 577 [39: 538].

On the other hand, it is answered that the
cases cited involved nothing but the general
power of the state to tax all property found
within its limits, by virtue of general laws
providing for such taxation, where no tax
is levied upon the article or discrimination
made against it by reason of the fact that
it has come from another state, and it is
maintained that the agreement in question
acts directly upon the subject of interstate
commerce and adds a restraint to it which is
unlawful under the provisions of the stat-

In the view we take of this case we are not called upon to decide whether the defendants are or are not engaged in interstatə commerce, because if it be conceded they are so engaged, the agreement as evidenced by the by-laws is not one in restraint of that trade, nor is there any combination to monopolize or attempt to monopolize such trade within the meaning of the act.

It has already been stated in the Hopkins Case, above mentioned, that in order to come within the provisions of the statute the di


The rule has no direct

rect effect of an agreement or combination was not formed for pecuniary profits, and a must be in restraint of that trade or com- careful perusal of the whole agreement fails, merce which is among the several states, or as we think, to show that its purpose was with foreign nations. Where the subject-other than as stated in the preamble. In matter of the agreement does not directly re- other words, we think that the rules adopted late to and act upon and embrace interstate do not contradict the expressed purpose of commerce, and where the undisputed facts the preamble, and that the result naturally clearly show that the purpose of the agree- to be expected from an enforcement of the ment was not to regulate, obstruct, or re- rules would not directly, if at all, affect instrain that commerce, but that it was en- terstate trade or commerce. The agreement tered into with the object of properly and now under discussion differs radically from fairly regulating the transaction of the busi- those of United States v. Jellico Mountain ness in which the parties to the agreement Coal & Coke Company, 46 Fed. Rep. 432 [3 were engaged, such agreement will be upheld Inters. Com. Rep. 626, 12 L. R. A. 753]; [616]as not within the statute, where it can be United States v. Coal Dealers' Association, seen that the character and terms of the S5 Fed. Rep. 252, and United States v. Adagreement are well calculated to attain the dyston Pipe & Steel Company [54 U. S. App. purpose for which it was formed, and where 723], 85 Fed. Rep. 271. The agreement in the effect of its formation and enforcement all of these cases provided for fixing the upon interstate trade or commerce is in any prices of the articles dealt in by the different event but indirect and incidental, and not its companies, being in one case iron pipe for purpose or object. As is said in Smith V. gas, water, sewer, and other purposes, and Alabama, 124 U. S. 465, 473 [31; 508, 510, coal in the other two cases. If it were con1 Inters. Com. Rep. 804]: "There are many ceded that these cases were well decided, cases, however, where the acknowledged they differ so materially and radically in powers of a state may be exerted and applied their nature and purpose from the case under in such a manner as to affect foreign or inter- consideration that they form no basis for its state commerce without being intended to decision. This association does not meddle operate as commercial regulations." The with prices and itself does no business. In same is true as to certain kinds of agree- refusing to recognize any yard trader who is ments entered into between persons engaged not a member of the exchange, we see no purin the same business for the direct and bona restraining interstate commerce, which, if pose of thereby affecting or in any manner affected at all, can only be in a very indirect and remote manner. tendency to diminish or in any way impede or restrain interstate commerce in the cattle dealt in by defendants. There is no tendency as a result of the rule, directly or indefendants for the class of cattle dealt in by directly, to restrict the competition among the market composed of defendants, and also them. Those who are selling the cattle have composed of the representative buyers of all the packing houses at Kansas City, and also of the various commission merchants who are constantly buying on orders and of those who are buying on their own account. This makes a large competition wholly outside of the defendants. The owner of *cattle for sale[618] is therefore furnished with a market at From very early times it has been the cus- which the competition of buyers has a broad tom for men engaged in the occupation of effect. All yard traders have the opportubuying and selling articles of a similar na-nity of becoming members of the exchange, ture at any particular place to associate and to thus obtain all the advantages there themselves together. The object of the association has in many cases been to provide for the ready transaction of the business of the associates by obtaining a general headquarters for its conduct, and thus to insure a quick and certain market for the sale or purchase of the article dealt in. Another purpose has been to provide a standard of business integrity among the members by adopting rules for just and fair dealing among them and enforcing the same by penalties for their violation. The agreements [617]have been voluntary, and the penalties have been enforced under the supervision and by members of the association. The preamble adopted by the association in this case shows the ostensible purpose of its formation. It

fide purpose of properly and reasonably regu-
lating the conduct of their business among
themselves and with the public. If an agree-
ment of that nature, while apt and proper
for the purpose thus intended, should pos-
sibly, though only indirectly and uninten-
tionally, affect interstate trade or commerce,
in that event we think the agreement would
be good. Otherwise, there is scarcely any
agreement among men which has interstate
or foreign commerce for its subject that may
not remotely be said to, in some obscure way,
affect that commerce and to be therefore
void. We think, within the plain and ob-
vious construction to be placed upon the
act, and following the rules in this regard
already laid down in the cases heretofore
decided in this court, we must hold the agree-
ment under consideration in this suit to be



The design of the defendants evidently is to bring all the yard traders into the association as members, so that they may become subject to its jurisdiction and be compelled by its rules and regulations to transact business in the honest and straightforward manner provided for by them. If, while enforcing the rules, those members who use improper methods or who fail to conduct their business transactions fairly and honestly are disciplined and expelled, and thereby the number of members is reduced, and to that extent the number of competitors limited, yet all this is done, not with the intent or purpose of affecting in the slightest degree interstate trade or commerce, and such trade

or commerce can be affected thereby only most remotely and indirectly, and if, for the purpose of compelling this membership, the association refuse business relations with those commission merchants who insist upon buying from or selling to yard traders who are not members of the association, we see nothing that can be said to affect the trade or commerce in question other than in the most roundabout and indirect manner. The agreement relates to the action of the associates themselves, and it places in effect no tax upon any instrument or subject of commerce; it exacts no license from parties engaged in the commercial pursuits, and prescribes no condition in accordance with which commerce in particular articles or between particular places is required to be conducted. Sherlock v. Alling, 93 U. S. 99 [23: 819]; Smith v. Alabama, 124 U. S. 465, 473 [31: 508, 510]; Pittsburg & S. Coal Company v. Louisiana, 156 U. S. 590, 598 [39: 544, 548, 5 Inters. Com. Rep. 18].

that reason. A claim that such refusal may
thereby lessen the number of active traders
on the market, and thus possibly reduce the
demand for and the prices of the cattle there
set up for sale, and so affect interstate 'trade,
is entirely too remote and fanciful to be ac-
cepted as valid.


From what has already been said regarding rule 10, it would seem to follow that the other rules (11, 12, and 13) are of equal validity as rule 10, and for the same reasons. The rules are evidently of a character to enforce the purpose and object of the exchange as set forth in the preamble, and we think that for such purpose they are reasonable and fair. They can possibly affect interstate trade or commerce in but a remote way, and are not void as violations of the act of Congress.

This case is unlike that of Hopkins v. Oxley Stave Company [49 U. S. App. 709] 83 Fed. Rep. 912, to which our attention has been called. The case cited was decided without reference to the act of Congress *upon[620] which alone the case at bar is prosecuted, and the agreement was held void at common law as a conspiracy to wrongfully deprive the plaintiff of its right to manage its business according to the dictates of its own judgment. It was also said that the fact could not be overlooked that another object of the conspiracy was to deprive the public at large of the benefits to be derived from a labor-saving machine which seemed to the court to be one of great utility. No question If for the purpose of enlarging the mem-as to interstate commerce arose and none was bership of the exchange, and of thus procuring the transaction of their business upon a proper and fair basis by all who are engaged therein, the defendants refuse to do business with those commission men who sell to or purchase from yard traders who are not members of the exchange, the possible 19]effect of such a course of conduct upon interstate commerce is quite remote, not intended, and too small to be taken into account. The agreement lacks, too, every ingredient of a monopoly. Everyone can become a member of the association, and the natural desire of each member to do as much business as he could would not be in the least diminished by reason of membership, while the business done would still be the individual and private business of each member, and each would be in direct and immediate competition with each and all of the other members. If all engaged in the business were to become members of the association, yet, as the association itself does no business, it can and does monopolize none. The amount and value of interstate trade is not at all directly affected by such membership; the competition among the members and with others who are seeking purchasers would be as large as it would otherwise have been, and the only result of the agreement would be that no yard traders would remain who were not members of the association. It has no tendency, so far as can be gathered from its object ar from the language of its rules and regulations, to limit the extent of the demand for cattle or to limit the number of cattle marketed or to limit or reduce their price or to place any impediment or obstacle in the course of the commercial stream which flows into the Kansas City cattle market. While in case all the yard traders are not induced to become members of the association, and those who are such members refuse to recognize the others in business, we can see no such direct, necessary or natural connection between that fact and the restraint of interstate commerce as to render the agreement not to recognize them void for

We are of opinion, therefore, that the order in this case should be reversed and the case remanded to the Circuit Court of the United States for the Western Division of the Western District of Missouri with directions to dismiss the complainants' bill with costs.

Mr. Justice Harlan dissented.

Mr. Justice McKenna took no part in the decision of this case.


NATIONAL BANK, Riordan Mercantile Company, and Arizona Lumber & Timber Company, Appts.,


B. N. FREEMAN, F. L. Kimball, and J. H. Hoskins, Copartners, as the Arizona Central Bank, and John Vories.

(See S. C. Reporter's ed. 620-631.)

Chattel mortgage; when valid-notice to
subsequent assignee-mortgage of domes-
tic animals.



A chattel mortgage of a given number of articles out of a larger number is valid as against those who know the facts.

The record of a chattel mortgage to other mortgagees is not notice to an assignee of a subsequent mortgage; but he is chargeable with notice of the record of a prior mortgage on the same property by the same mortgagor to his assignor.

[blocks in formation]

Argued April 15, 18, 1898. Decided October of the said pretended mortgages, or of either


24, 1898.

PPEAL from the Supreme Court of the Territory of Arizona to review a judg ment of that Court affirming a judgment of the District Court of that Territory in favor of the appellees, B. N. Freeman et al., deciding the priority of mortgages, etc.

Statement by Mr. Justice McKenna: [621] *The appellees recovered judgment in the district court, which was affirmed on appeal to the supreme court of the territory, from which an appeal has been taken to this


The facts found by the territorial supreme Court are as follows:

"On July 10, 1890, Harry Fulton, one of the defendants in the court below, executed an alleged chattel mortgage for $7,500, payable in one year, in favor of the Arizona Central Bank, one of the appellees herein and plaintiffs in the court below; that the description in said mortgage of the property purporting to be covered by it is as follows: 1,200 lambs, marked, ewes with hole in left ear and split in right, wethers, hole in right ear and split in left ear; 1,600 ewes marked hole in left ear and split in right ear; 2,200 wethers marked hole in right ear and split in left ear, making 5,000 sheep in all with

the Fulton brand."

"That on said day said Fulton executed another alleged mortgage for $4,000, payable in ninety days, in favor of John Vories, one of the appellees herein and one of the defendants in the court below; that the de

scription in said alleged mortgage is as follows: 'Wethers and dry ewes to the number of 1,000, the wethers marked with a split in the left ear and a hole in the right; ewes

marked with a hole in the left ear and a split in the right.'

"That on said day said Fulton owned and possessed 6,200 sheep that were herded and run together, and this was all he owned, said sheep being marked as follows: 'Ewes and ewe lambs split in the right ear, hole in the left; wethers and wether lambs reverse;'

and both of the said appellees had knowledge of this fact at the time they accepted their alleged mortgages, the one on 5,000 head and [622]the other on 1,000 head, 200 head *not being included in either of said mortgages, all of said sheep having the same mark and running in the same herd, and none of them being capable of identification save only by the ear mark put on them as aforesaid, and that therefore there was no way by which any of said sheep could be distinguished from any of the others.

"That said Fulton continued in the ownership and possession of all of said sheep, save only such as died, were sold by him, consumed, or lost, until the 18th December, 1893. At no time did appellees, or either of them, ever take or ever have possession of said sheep, or any of them, or of the increase

thereof, nor were any of said sheep or the increase thereof ever by anyone identified, designated, or in any way segregated, apportioned or substituted to the or on account thereof. From date of said mortgages (July 10, 1890) to January 4, 1893, said Fulton from time to time sold of said sheep as folby said Fulton accounted for, and the prolows: 1,700 head, at $3 per head, that were ceeds of which he deposited with the apsaid appellees knew of these sales and conpellee Arizona Central Bank; that both of

sented to them.

"On January 4, 1893, said Fulton executed mortgage for $8,885 in favor of Arizona Lumber & Timber Company, one of appellants herein and one of the defendants in the court below, covering, among other property, the following described sheep: About 3,000 ewes, 1.000 wethers, and 2,000 lambs, same being all the sheep now owned increase which may be produced by said by mortgagor, and including all wool and sheep marked, ewes, split in right ear, hole in left; wethers reverse.' At the instance of appellees said appellant, Arizona Lumber & Timber Company, permitted the following recital to be inserted in said last-mentioned mortgage, namely: 'This being subject to a mortgage on 5,000 of above sheep to Arizona Central Bank, and one on 1,000 head, and the residence property to John Vories, said number, as described in mortgages, to be kept good out of increase.' There was consideration for the foregoing recital in the mortgage of January 4, 1893, namely, that their mortgages, and should release their the appellees should forbear to foreclose [623] claim on the wool clip of 1893, the wool at that time not having been shorn.

"That to August 30, 1893, $3,000 of the amount claimed to be due on the mortgage of January 4, 1893, was paid out of wool for the purpose of securing a $500 advance, proceeds, and that on said day said Fulton, and applying the remainder as a payment on said mortgage of January 4, 1893, exeable in ninety days, securing the same by a cuted his promissory negotiable note, paychattel mortgage for the sum of $6,000 to the Arizona Lumber & Timber Company.

"That said mortgage was a conveyance, as a security for the payment of said note, of sheep, the same being in said mortgage described as follows, namely: 'About 3,200 ewes, more or less; about 1,300 wethers, more or less; about 1,400 lambs, more or less, being all the sheep now owned by mortgagor, including all the wool and increase which may be produced by said sheep,marked, ewes and ewe lambs, split in right ear, hole in left; wethers and wether lambs,


"That in said last-mentioned mortgage no recital or reference was made in any way, nor in any manner, to the existence of any other mortgage or mortgages whatsoever.

"That on the 29th day of September, 1893, and prior to the maturity of said last-mentioned note of $6,000, said appellant Arizona Lumber & Timber Company, representing that said mortgage was a first and prior lien

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