the government; and if, during the hearing, new facts are proved which constitute a reason, additional to those stated in the warrant of arrest, why the alien is in the country in violation of law, the alien is entitled to have his attention directed to such facts and reason, and to be given an opportunity to show cause why he should not be deported therefor. The rule has the approval of the Supreme Court in the following language:

"Considering the summary character of the hearing provided by statute and the rights given to counsel in the rules prescribed, we are not prepared to say that the rules are so arbitrary and so manifestly intended to deprive the alien of a fair, though summary, hearing as to be beyond the power of the Secretary of Commerce and Labor under the authority of the statute." Low Wah Suey v. Backus, supra, 225 U. S. 472, 32 Sup. Ct. 737, 56 L. Ed. 1165.

[6-8] The testimony of Leong Toe, Ton Yook Lan, and Wong Go, the embodying of which in the record is complained of, was taken preliminarily to the issuance of the warrant of arrest, and the petitioner was allowed the right to inspect such warrant and the testimony in accordance with the injunction of the rule. Having had the opportunity to inspect the warrant and the evidence, and the right by counsel to inspect and make copy of the minutes of the hearing, the petitioner was put into possession of all information necessary to enable her to concert her defense, and to produce such witnesses and testimony as she may have deemed essential to her cause. By a subsequent clause in the rule, the full record is required to be forwarded to the Bureau of Immigration, and no constitutional right of the petitioner can be infringed by such a practice. Emphasis is placed, however, upon the refusal of the inspector to recall such witnesses for examination by the petitioner, or to afford her an opportunity for cross-examining them. But, the testimony being preliminary to the issuance of the warrant, she was not legally entitled to the right of cross-examination. The statute does not give authority to issue process to compel the attendance of witnesses in behalf of persons detained for inquiry touching their right to remain. in this country. Low Wah Suey v. Backus, supra. And it does not appear that the petitioner might not have produced the testimony of any witness she so desired. Indeed, the record would indicate that she was afforded such opportunity. Hence she cannot complain of the inspector's action in that regard.

[9] The next contention arises touching the admission in evidence of the affidavits of Layne and Bohle. It is complained that such testimony by affidavit was taken without notice to petitioner; that she was not afforded the opportunity of cross-examination; and that the testimony was embodied in the record without affording her opportunity for answering it.

The affidavits were inspected by counsel for petitioner, and the only objection or protest made to their admission was that the petitioner was not afforded the opportunity to cross-examine the affiants; none was interposed on the ground that petitioner was not given the opportunity of answering them; nor was any request made for an extension of time in which to produce further testimony to refute the same. So the question rests on the propriety of admitting affidavits in evidence.

against petitioner, without first having notified her of the intention of taking such affidavits, and without affording her the privilege of crossexamination.

This kind of testimony, while not ordinarily competent for judicial inquiry in the sense of a trial in a court of justice, has nevertheless been resorted to before executive officers and boards of immigration inspectors for determining the right of aliens to remain in this country, and yet the aliens have been refused their liberty upon habeas corpus, where the inquiry appeared to be fair and impartial, and where the immigration officers had been guilty of no abuse of discretion reposed in them. Such a case was Healy v. Backus, Commissioner, 137 C. C. A. 166, 221 Fed. 358, recently decided by this court. In that case many affidavits were taken and admitted, both for and against the petitioner, and a very wide range of inquiry was indulged in by which information was gathered by means of letters and reports, and yet the court was of the view that the inquiry was fairly conducted toward the aliens whom Healy represented, and without abuse of discretion on the part of the immigration officers, and consequently refused to liberate them upon habeas corpus; there being pertinent testimony adduced from which the finding made could be reasonably inferred. To the same purpose are also the recently decided cases of White v. Gregory, 213 Fed. 768, 130 C. C. A. 282, in this court, and United States v. Uhl, 215 Fed. 573, 131 C. C. A. 641, in the Circuit Court of Appeals for the Second Circuit.

The language of the court in Low Wah Suey v. Backus, supra, 225 U. S. 468, 32 Sup. Ct. 735, 56 L. Ed. 1165, is pertinent for repetition here:

"In order to successfully attack by judicial proceedings the conclusions and orders made upon such hearings, it must be shown that the proceedings were manifestly unfair, that the action of the executive officers was such as to prevent a fair investigation, or that there was a manifest abuse of the discretion committed to them by the statute. In other cases the order of the executive officers, within the authority of the statute, is final."

We are not convinced, from the petition and the record made a part thereof, that any unfairness or impartiality was practiced by the immigration officers in the conduct of petitioner's examination touching her deportation, nor do we find that they were guilty of any abuse of discretion. The objections and protest insisted upon, therefore, are not well taken.

[10] As it relates to the charge that the immigration inspector or the commissioner submitted evidence of some kind detrimental to the petitioner, and that such evidence was never presented to petitioner for inspection, but was clandestinely forwarded to Washington, and that by reason thereof the petitioner was denied any opportunity to see and inspect such evidence, or to rebut the same, the statements are but conclusions, without assertion of facts in their support. Such allegations are insufficient to support the charge of bad faith. Low Wah Suey v. Backus, supra, 225 Ü. S. 472, 32 Sup. Ct. 734, 56 L. Ed. 1165. Judgment of the District Court affirmed.

(223 Fed. 494)

HAMILTON TRUST CO. v. CORNUCOPIA MINES CO. OF OREGON et al. (BISHER, Intervener).

(Circuit Court of Appeals, Ninth Circuit. May 10, 1915.)

1. APPEAL AND ERROR

No. 2526.

150-PARTIES ENTITLED TO APPEAL.

In a suit by the trustee named in a corporate mortgage to foreclose such mortgage, a receiver was appointed to operate the property pendente lite, and the property was ordered sold and was sold to a trustee for the bondholders, who, in payment of the amount due, surrendered the bonds, which were thereupon canceled. The trustee was fully paid and its cause of action fully and completely discharged of record. An employé of the receiver obtained a judgment for personal injuries, intervened in the foreclosure suit, and procured a decree adjudging that he had a lien on the property for the amount of his judgment. A new corporation, to which the purchaser conveyed, was not a party to the proceedings and had not asked to be made a party, and the mortgage trustee did not represent it. Held, that such trustee had no appealable interest in the controversy, and an appeal by it would be dismissed, as it had parted with whatever rights it had in the property and could not be prejudiced by subsequent proceedings, and it was not interested in the reversal of the decree to avoid liability for a deficiency in the funds of the receivership to pay the judgment, as it was not liable for any such deficiency.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 934946; Dec. Dig. 150.]

2. APPEAL AND ERROR 150-PARTIES ENTITLED TO APPEAL.

Every person desiring to appeal from a decree must be interested in in the subject-matter of the litigation, and the interest must be immediate and pecuniary and not a remote consequence of the judgment and must be substantial; a merely nominal party to the action not having a right to appeal.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 934-946; Dec. Dig. 150.]

3. APPEAL AND ERROR 150-PARTIES ENTITLED TO APPEAL.

The interest of a party seeking to appeal must be subsisting, and though a party may have an appealable interest at the commencement of a suit, if that interest has terminated before the entry of the judgment or decree sought to be appealed from, he cannot appeal.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 934916; Dec. Dig. 150.]

4. APPEAL AND ERROR 150-PARTIES ENTITLED TO APPEAL.

The right or title which a party seeking to appeal seeks to establish must be his own and not that of a third person.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 934946; Dec. Dig. 150.]

5. MORTGAGES 551-FORECLOSURE OF CORPORATE MORTGAGE-EXPENSES OF RECEIVERSHIP-LIABILITY OF PROPERTY.

In a suit to foreclose a corporate mortgage, a receiver was appointed by an order which authorized him to operate the mortgaged property and from the moneys coming into his hands to pay the necessary expenses incident to such operation. The foreclosure decree provided for the payment out of the proceeds of sale of the expenses of the receivership prior to the payment of the amount due the bondholders. The purchaser at the sale paid the purchase price by the surrender of bonds without the payment into court of any funds for the adjustment or payFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

ment of the expenses of the receivership. Held that, such expenses not having been adjusted or paid at the time of the conveyance, the purchaser took the property burdened with whatever deficiency there might be in such expenses.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 1578, 1579; Dec. Dig. ~551.]

Appeal from the District Court of the United States for the District of Oregon; Chas. E. Wolverton, Judge.

Action by the Hamilton Trust Company against the Cornucopia Mines Company of Oregon and others, in which John L. Bisher, Jr., by John L. Bisher, his guardian ad litem, intervened. From a judgment in favor of the intervener, complainant and the defendants appeal. Appeal dismissed.

Emmett Callahan and Wood, Montague & Hunt, all of Portland, Or., for appellants.

Boothe & Richardson and Charles A. Johns, all of Portland, Or., for appellee.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW, Circuit Judge. On April 1, 1905, the Cornucopia Mines Company of Oregon, hereinafter referred to as the mines company, issued $300,000 in first mortgage bonds, with interest at 6 per cent. per annum, interest payable semiannually. To secure the bonds, the mines company made and executed a first mortgage upon certain particularly described mines and other property of the company, and named the Hamilton Trust Company, of Brooklyn, N. Y., hereinafter called the trust company, as trustee. The bonds were sold, and when they became due and payable on April 1, 1911, the mines. company made default in payment of the principal sum of $300,000, and likewise defaulted in the payment of the interest on the bonds in the sum of $99,000. On December 5, 1911, the trust company filed its bill of complaint in the United States Circuit Court for the District of Oregon against the mines company and other defendants to foreclose the mortgage. In the complaint the lands and other property of the mines company were particularly described in detail. Service having been had upon the mines company and the other defendants, C. E. S. Wood, one of the attorneys for the complainant, moved the court for the appointment of a receiver, based upon the bill of complaint and the affidavit of Emmett Callahan, who for eight years had been the general agent and attorney for the mines company. In this affidavit it was alleged:

"That it is necessary that said mines should continue in operation and development; that, if the said mines were closed down and ceased to be operated and developed, great irreparable injury and loss would occur by said mines being closed down and not operated; that, if said mines are not continued in operation and development, the stamp mill, electric power plant, engines, pumps, and other machinery will greatly deteriorate in value and loss; that the tunnels, shafts, winzes, stopes, and other underground openings and workings of said Cornucopia mining claims and mines would cave in and be greatly damaged and great loss follow by the action of the elements For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

and flooding of said openings in said mines and mining claims filling up with water deteriorating, destroying, and damaging said mines and mining claims, its buildings and operating plants, in a reasonably estimated sum of at least from $40,000 to $100,000."

Upon this showing the court, on December 21, 1911, appointed Robert M. Betts receiver of the real and personal property of the mines company, with authority to continue the operation of said mining and other property, and every part and portion thereof, as theretofore operated, and to preserve the said property in proper condition and keep the same in repair and to employ such persons and make such payments and disbursements as might be needful and proper in doing So. It was further ordered:

"That, out of the moneys that shall come into the hands of said receiver from the operation of said property or otherwise, he shall pay the necessary expenses incident to the operation of said property, and hold the remainder, if any there be, subject to the order of the court."

On January 2, 1912, Betts qualified as such receiver and took possession of the property and proceeded to operate the same as directed by the court. The mines company, on January 22, 1912, filed its demurrer to the bill of complaint, which demurrer was by the court on February 19, 1912, overruled, and, the mines company refusing to plead further, the court ordered that the bill of the plaintiff be taken as confessed against the mines company and the other defendants. A final decree of foreclosure and sale was made and entered in favor of the trust company and against the mines company and the other defendants on April 30, 1912. The decree provided that the trust company have and recover the sum of $422,940 and interest, as therein provided, and the further sum of $10,000 as attorneys' fees, together with its costs and disbursements to be taxed, and that the mortgaged property described in the bill of complaint should be sold under the direction of a special master appointed by the court. It was further provided:

"That the purchaser or purchasers of said mortgaged property at such sale shall be entitled to use and apply in making payment of the purchase price any of the outstanding bonds secured by said mortgage, as therein provided, but a sufficient portion of the purchase price shall be paid in cash to provide funds for payment of all costs and expenses incurred herein, and that the master return the cash proceeds of said sale to the clerk of this court, and that the same be paid to the clerk of this court, and, upon the completion and confirmation by this court of the sale made under and in pursuance of this decree, the said clerk of this court shall pay out such moneys as follows: (1) The expenses of the sale of said property. (2) The expenses of the receivership herein. (3) The costs of this suit. (4) Complainant's attorneys' fees. (5) The taxes and other expenses incurred and paid pursuant to the provisions of said mortgage. (6) All amounts due or to become due upon the bonds secured by said mortgage, and, in case such proceeds shall be insufficient to pay in full the whole amount of principal and interest so due and unpaid on such bonds, then the proceeds shall be applied ratably upon the whole amount due according to the aggregate thereof, without preference or priority of any part over any other part thereof. (7) The remainder, if any, to respondent the Cornucopia Mines Company of Oregon, its successors and assigns."

The sale took place, as provided in the decree, on the 29th day of June, 1912, and the mortgaged premises were sold by the special mas