While an erroneous decision might be in some cases properly reconsidered and overruled, yet it is clear that the first necessity is to convince the court that the decision was erroneous. It is scarcely to be assumed that such a result could be secured by the presentation for a third time of the same arguments which had twice before been unsuccessfully urged upon the attention of the court.

We have listened to them now because the eminence of the counsel engaged, their earnestness and zeal, their evident belief in the correctness of their position, and, most important of all, the very grave nature of the questions argued, called upon the court to again give to those arguments strict and respectful attention. It is not matter for surprise that we still are unable to see the error alleged to exist in our former decision, or to change our opinion regarding the questions therein involved.

Upon the point that the agreement is not In fact one in restraint of trade, even though It did prevent competition, it must be admitted that the former argument has now been much enlarged and amplified, and a general and most masterly review of that question has been presented by counsel for the respondents. That this agreement does In fact prevent competition, and that it must have been so intended, we have already attempted to show. Whether stifling competition tends directly to restrain commerce in the case of naturally competing railroads is a question upon which counsel have argued with very great ability. They acknowledge that this agreement purports to restrain competition, although, they say, in a very slight degree, and on a single point. They admit that, if competition and commerce were identical, being but different names for the same thing, then, in assuming to restrain competition even so far, it would be assuming in a corresponding degree to restrain commerce. Counsel then add (and therein we entirely agree with them) that no such identity can be pretended, because it is plain that commerce can and does take place on a large scale, and in numerous forms, without competition. The material considerations there fore turn upon the effects of competition upon the business of railroads,-whether they are favorable to the commerce in which the roads are engaged, or unfavorable, and in restraint of that commerce. Upon that question it is contended that agreements between railroad companies of the nature of that now before us are promotive, instead of in restraint, of trade.

This conclusion is reached by counsel after an examination of the peculiar nature of railroad property, and the alleged baneful effects of competition upon it and also upon the public. It is stated that the only resort open to railroads to save themselves from the effects of a ruinous competition is that of agreements among themselves to check and control It. A ruinous competition is, as they say, apt

to be carried on until the weakest of the combatants goes to destruction. After that the survivor, being relieved from competltion, proceeds to raise its prices as high as the business will bear. Commerce, it is said, thus finally becomes restrained by the effects of competition, while at the same time otherwise valuable railroad property is thereby destroyed, or greatly reduced in value. There can be no doubt that the general tendency of competition among competing railroads is towards lower rates for transportation, and the result of lower rates is generally a greater demand for the articles so transported, and this greater demand can only be gratified by a larger supply, the furnishing of which increases commerce. This is the first and direct result of competition among railroad carriers.

In the absence of any agreement restraining competition, this result, it is argued, is neutralized, and the opposite one finally reached, by reason of the peculiar nature of railroad property, which must be operated, and the capital invested in which cannot be withdrawn, and the railroad managers are therefore, as is claimed, compelled to not only compete among themselves for business, but also to carry on the war of competition until it shall terminate in the utter destruction or the buying up of the weaker roads, after which the survivor will raise the rates as high as is possible. Thus the indirect but final effect of competition is claimed to be the raising of rates, and the consequent restraint of trade, and it is urged that this result is only to be prevented by such an agreement as we have here. In that way alone it is said that competition is overcome, and general uniformity and reasonableness, of rates securely established.

*The natural, direct, and immediate effect of competition is, however, to lower rates, and to thereby increase the demand for commodities, the supplying of which increases commerce; and an agreement whose first and direct effect is to prevent this play of competition restrains, instead of promoting, trade and commerce. Whether, in the absence of an agreement as to rates, the consequences described by counsel will in fact follow as a result of competition, is matter of very great uncertainty, depending upon many contingencies, and in large degree upon the voluntary action of the managers of the several roads. Railroad companies may, and often do, continue in existence and engage in their lawful traffic at some profit, although they are competing railroads, and are not acting under any agreement or combination with their competitors upon the subject of rates. It appears from the brief of counsel in this case that the agreement in question does not embrace all of the lines or systems engaged in the business of railroad transportation between Chicago and the Atlantic coast. It cannot be said that destructive competition, or, in other words, war to the death, is bound

to result unless an agreement or combination to avoid it is entered into between otherwise competing roads.

It is not only possible, but probable, that good sense and integrity of purpose would prevail among the managers, and, while making no agreement and entering into no combination by which the whole railroad interest as herein resented should act as one combined and consolidated body, the managers of each road might yet make such reasonable charges for the business done by it as the facts might justify. An agreement of the nature of this one, which directly and effectually stifles competition, must be regarded under the statute as one in restraint of trade, notwithstanding there are possibilities that a restraint of trade may also follow competition that may be indulged in until the weaker roads are completely destroyed, and the survivor thereafter raises rates and maintains them.

Coming to the conclusion we do in regard to the various questions herein discussed, we think it unnecessary to further allude to the other reasons which have been advanced for a reconsideration of the decision in the TransMissouri Case.

The judgments of the circuit court of the United States for the Southern district of New York and of the circuit court of appeals for the Second circuit are reversed, and the case remanded to the circuit court, with directions to take such further proceedings therein as may be in conformity with this opinion.

Mr. Justice GRAY, Mr. Justice SHIRAS, and Mr. Justice WHITE dissented. Mr. Justice MCKENNA took no part in the decision of the case.

(171 U. S. 633,

NAEGLIN et al. v. DE CORDOBA et al.
(October 24, 1898.)
No. 35.

REVIEW ON APPEAL-INFANTS-RELEASE OF RIGHT
TO INHERITANCE-POWERS OF NAT-
URAL GUARDIAN.

1. On appeal from a territorial court in a suit tried without a jury, where no question is made as to the admission or exclusion of evidence, the only question for determination is whether the decree is sustained by the findings of fact.

2. The mother of illegitimate minor children, who are, by statute, entitled to inherit from their father, cannot release such right in their behalf as their natural guardian.

of law in favor of the plaintiffs. Upon hearing in the district court, a decree was entered adversely to the conclusions of the master, and for the defendants. On appeal

to the supreme court of the territory, that decree was, on August 24, 1895, reversed, and one entered remanding the case to the district court, with instructions to enter a decree in conformity with the findings and conclusions of the master. 41 Pac. 526. Thereupon the defendants appealed to this court.

At the time of entering the decree, and also of overruling* a petition for rehearing, no, statement of facts was prepared by the supreme court, and no other determination of the facts than such as appears from the direction to enter a decree in conformity with the findings and recommendations of the mas ter. But, after the supreme court had ad journed, an application was made to have the findings of fact made by the master incorporated into the record as a statement and finding of facts by that court, for the purpose of an appeal, and upon that application the following order was entered:

"And now the foregoing statement and finding as to the facts proven and established by the evidence in each of said causes are ordered to be incorporated in the record of said supreme court as part thereof, as fully as we may be thereunto empowered, the July term of the supreme court having been adjourned on the 26th day of September, A. D. 1896, and this order made and signed by each of the judges while in his district respectively.

"Thomas Smith, Chief Justice,

"Needham C. Collier, Associate Justice,

"Supreme Court of New Mexico. "Signed at Silver City, in the Third judicial district. Gideon D. Bantz, "Associate Justice of the Supreme Court of New Mexico and Presiding Judge of the Third Judicial District Court. "Signed at Santa Fé, N. M., in the First judicial district. N. B. Laughlin, "Associate Justice of the Supreme Court and Judge of the First Judicial District." It appears from the bill, answer, and findings that Frederick Metzger, though an unmarried man, was the father of several children by different women; and this suit is one between these several illegitimate children to determine their respective rights to share in his estate. The counsel for appellants says in his brief: "The bill of complaint and the testimony present for determination of the count two questions: First. What estate

On March 29, 1886, the appellees, Doloritas Martin De Cordoba et al., filed their bill in the district court of the county of Mora, Fourth judicial district, territory of New Mexico, to establish their rights as the children and heirs of one Frederick Metzger. After answer the case was referred to a master, who reported findings of fact and conclusions

his death? And, second, who is entitled to that estate?"

Harvey Spaulding, for appellants.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.

No question is made in this record as to the admission or exclusion of testimony

There being no jury, the case comes here on appeal, and the only question we can consider is whether the findings of fact sustain the decree. 18 Stat. 27; Stringfellow v. Cain, 99 U. S. 610; Cannon v. Pratt, Id. 619; Neslin v. Wells, 104 U. S. 428; Hecht v. Boughton, 105 U. S. 235, 236; Gray v. Howe, 108 U. S. 12, Sup. Ct. 136; Eilers v. Boatman, 111 T. 8. 356, 4 Sup. Ct. 432; Zeckendorf v. ohnson, 123 U. S. 617, 8 Sup. Ct. 261; Sturr v. Beck, 133 U. S. 541, 10 Sup. Ct. 350; Mammoth Min. Co. v. Salt Lake Foundry & Mach. Co., 151 U. S. 447, 14 Sup. Ct. 384.

The order signed in vacation by the several members of the supreme court cannot be considered an order of the court. Assuming, however, for the purposes of this case, that, in view of the general language in the opinion of the court, we may take the findings of the master as its statement of facts, we observe that no doubtful question of law is presented for our determination. The master finds that Metzger was the father of the appellees, and that he owned certain property. These are questions of fact, resting upon testimony, concluded, so far as this court is concerned, by the findings, and into which it is not our privilege to enter.

While under the common law illegitimate children did not inherit from their father, the statutes of New Mexico introduced a new rule of inheritance (Comp. Laws N. M. 1884, p. GSO, § 1435): "Natural children, in the absence of legitimate, are heirs to their father's estate, in preference to the ascendants, and are direct heirs to the mother if she die intestate." In other words, under this *statute, there being no legitimate children, illegitimate children inherit.

It appears that on March 19, 1875, and while Metzger was living, the mother of these plaintiffs, then minors, in her own right and for the minors, receipted and relinquished all claims against him. Without stopping to consider what was meant by that release, and giving to it all the scope which its language may suggest, we remark that a natural guardian has no power to release the claim of a ward to an inheritance without the sanction of some tribunal. Woerner, Guardianship, p. 185, and following.

The decree is affirmed.

a former mortgage between the same parties, and covering the same property, which is not surrendered or satisfied of record, is charged by the record with notice of, and is bound by, recitals in such former mortgage.

3. A mortgage of domestic animals covers their increase, though silent as to such in

crease.

Appeal from the supreme court of the territory of Arizona.

"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 court. 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 description 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 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 any one identi

021

fied, designated, or in any way segregated, apportioned, or substituted to the, or on account of the, said pretended mortgages, or of either thereof. From date of said mortgages (July 10, 1890) to January 4, 1893, said Fulton from time to time sold of said sheep as follows: 1,700 head, at $3 per head, that were by said Fulton accounted for, and the proceeds of which he deposited with the appellee Arizona Central Bank. That both of said appellees knew of these sales, and consented to them.

"On January 4, 1893, said Fulton executed a 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 by mortgagor, and including all wool and increase which may be produced by said 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 the appellees should forbear to foreclose their mortgages, and should release their 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 proceeds, and that on said day said Fulton, for the purpose of securing a $500 advance, and applying the remainder as a payment on said mortgage of January 4, 1893, executed his promissory negotiable note, payable in 90 days, securing the same by a chattel 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, reverse.'

"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 llen on said described sheep, and by means thereof sold, assigned, indorsed, and delivered said note and mortgage to the Northwestern National Bank, one of the appellants herein, and one of the defendants in the court below; said Northwestern National Bank becoming an innocent purchaser for value.

"That on December 18, 1893, said Fulton being then indebted to Riordan Mercantile Company, one of the appellants herein, and a defendant in the court below, in the sum of $810.91, it brought its action in sald district court against said Fulton whereby to collect the same, and at the same time caused to be issued out of the clerk's office of said court a writ of attachment, which was then levied on the property following,*namely: 'All the right, title, and interest of the defendant Harry Fulton in and to the following described sheep: 2,926 ewes, marked hole in left ear, split in right; 900 wether sheep, marked hole in right ear, split in left ear; 1,287 lambs,-ewe lambs marked hole in left ear, split in right; wether lambs marked hole in right ear, split in left; 118 rams;' same being all of the sheep then owned by said Fulton.

"That on 16th March, 1894, judgment was rendered in said suit in favor of said plamtiff company and against said Fulton for said amount, and said attachment lien was foreclosed. That on the 31st day of March, 1894, the sheriff of said county of Coconino, by virtue of and pursuant to said judgment, sold said property and delivered the same to the appellant Riordan Mercantile Company, who then entered into the possession thereof, was so in the possession thereof when this cause was tried in the lower court, and is still in possession thereof.

"That by virtue of said writ of attachment the sheriff attached all the sheep then owned by said Fulton, and that on said day, to wit, on the 18th day of December, 1893, there were of said sheep only 1,000 head of ewes remaining out of all the sheep that existed on July 10, 1890, the date of said alleged mortgages to appellees. That the remainder of sald ewes, all the male sheep, and the lambs had by that time died, been consumed, sold or lost.

"That subsequent to the making of said alleged mortgages to said appellees an oral agreement between them and the said Fulton was made, that the securities of appellees were to be kept good out of the increase by substitution, the consideration therefor being that said Fulton might sell and dispose of the said sheep without interference from appellees.

"That Sisson, a witness for appellants in this case, is and was during all of said transactions the treasurer of both the Riordan Mercantile Company and the Arizona Lumber & Timber Company, appellants herein, and that these two corporations have practically the same officers.

*626

"That in said district court said Arizona Central Bank brought its suit as plaintiff against said Fulton, Vories, Donahue as sheriff, the Arizona Lumber & Timber Company, the Riordan Mercantile Company, and the Northwestern National Bank, as defendants, asking for a foreclosure of its said alleged mortgage; the same being the above-entitled

cause.

"That said action was tried, and judgment was rendered foreclosing said alleged mortgages of both of appellees herein, and also the said mortgage dated January 4, 1893, of said Arizona Lumber & Timber Company, and the mortgage owned by said Northwestern National Bank, as aforesaid, in which said judgment said court adjudged that appellees have a prior and first lien on said property, viz. the Arizona Central Bank upon 5,000 sheep of the Fulton mark, by reason of its said mortgage, and the said Vories on 1,000 sheep of the Fulton mark, by reason of his said mortgage; and said court decreed and ordered that an order of sale issue for the sale of all of said property to the sheriff of said county, and that the proceeds arising therefrom be divided by the sheriff and applied as follows, namely, at the ratio of five dollars to said Arizona Central Bank, and one dollar to said Vories; that, in case anything should be left after the payment of said two mortgages to said bank and Vories, the same should be applied to the payment of the judgments of said Northwestern National Bank and said Arizona Lumber & Timber Company and Riordan Mercantile Company in the order named."

There are 17 assignments of errors, which are somewhat confused. They are grouped and presented by counsel under seven heads, as follows:

"First. In the first assignment of error it is set forth that the trial court erred in adjudging, and the territorial supreme court erred in affirming said judgment, that the mortgages of the appellees were prior liens on all of the sheep owned by defendant Fulton at the time of the execution of said mortgages, even though said mortgages had been good and prior liens on the sheep specified therein.

"Second. In the second, third, fifth, and eighth assignments of error, it is set forth that the trial court, and the territorial supreme court in sustaining its holding, erred in admitting in evidence the mortgages from defendant Fulton to the appellees, marked Exhibits A and B, against the objections of the appellants, and in overruling motion of appellants to strike out of the evidence the said mortgages, and in holding that said mortgages were valid and subsisting liens on all of said property, and in holding and deciding that the description of said property in appellees' said mortgages was a sufficient description.

"Third. In the fourth and seventh assignments it is set forth that the court erred in admitting, over the objection of the appellants,

testimony concerning a conversation between J. H. Hoskins, John Vories, F. W. Sisson, and Harry Fulton, and evidence relative to an alleged agreement, and evidence tending to prove a breach of contract between the appellees and appellant Arizona Lumber & Timber Company.

"Fourth. The trial court erred, as set forth in the fifteenth and sixteenth assignments, in adjudging that on the date of its decree herein the mortgage of said appellee bank covered five thousand head of sheep of the Fulton herd and mark, such adjudication attempting to substitute five thousand head of sheep after the making of said two mortgages to appellees. The trial court erred in attempting said substitution, and then holding it good as to appellants Riordan Mercantile Company and Northwestern National Bank.

"Fifth. The trial court erred, as set forth in the eleventh assignment, in adjudging that said mortgages of appellees were mere securities for debts, the legal title to said sheep remaining in said Fulton, notwithstanding said mortgages, and in adjudging that said sheep should be sold, and the proceeds paid to said Arizona Central Bank and said Vories, in the proportion of five dollars to the former and one to the latter.

"Sixth. The trial court erred, as set forth in the seventeenth assignment, in adjudging that appellant Northwestern National Bank was bound by said pretended agreement of substitution, or was bound by said pretended mortgages of appellees, or that said mortgages were prior liens on said property, or on any of it, to the mortgage owned by said appel. lant.

"Seventh. In the sixth, ninth, tenth, twelfth thirteenth, and fourteenth assignments, it is set forth that the court erred in denying and overruling defendants' motion for a new trial of said cause; and in deciding that the mortgage to said appellee the Arizona Central Bank conveyed five thousand head of sheep, marked: Ewes, with hole in left ear and split in right; wethers, with hole in right ear and split in left ear,-and that a thousand more of said sheep were conveyed by mortgage to said appellee Vories, with the same marks; and in adjudging that the property included in the said attachment lien of the said Riordan Mercantile Company, and sold and delivered to said company thereunder, was the same property that is conveyed, or attempted to be conveyed, by the mortgages of said appellees; and in adjudging that the rights, title, and interest obtained by said Riordan Mercantile Company by virtue of said attachment lien and sale were subject to the alleged rights of said appellees by virtue of their said pretended mortgages; and in adjudging that appellants Riordan Mercantile Company and Arizona Lumber & Timber Company had actual notice of the property conveyed by the said alleged mortgages of said appellees; and in adjudging that F. W. Sisson, as the treasurer of said Riordan Mercantile Company, agreed