In re Joseph M. Behrendt.

which was a breach of the good faith which, it is indispensable, should be observed between principal and agent.

It may be said that the plaintiffs should receive the sum which was agreed to be paid for the electrotypes which they might furnish to the different newspapers, but the electrotypes were to be furnished to those papers in which the advertising was done upon the terms which the agents were employed to obtain, and it has heretofore been said, that these terms were entered into by all the proprietors only as a matter of form.

There are other grounds of demurrer, technical in their character, which I do not consider of importance.

The demurrer is overruled.

E. P. Arvine and Talcott H. Russell, for the plaintiffs.

John W. Alling, for the defendant.

IN THE MATTER OF JOSEPH M. BEHRENDT, ON HABEAS

CORPUS.

The 5th section of the Act of August 3d, 1882, (22 U. S. Stat, at Large, 216,) in regard to the mode of authenticating documents to be used in evidence in extradition cases, restores, in substance, the provisions, on that subject, of the Act of June 22d, 1860, (12 Id., 84,) and supersedes those of § 5,271 of the Revised Statutes, as well as those of the Act of June 19th, 1876, (19 Id., 59.) In a case of extradition to Prussia for forgery, the evidence before the United States Commissioner consisted of depositions taken in Prussia, in criminal proceedings there, in a criminal Court, against the prisoner, for forgery, with a certificate by the judge of the Prussian Court, that this judicial proceeding, with respect to its form, is valid evidence according to the laws existing in Prussia," and a certificate by the United States minister, that the documents are properly and legally authenticated, so as to entitle them to be received for similar purposes by the tribunals of Prussia." On habeas corpus: Held, that the certificates were sufficient in form, under the Act of 1882.

(Before BROWN, J., Southern District of New York, December 29th, 1884.)

In re Joseph M. Behrendt.

BROWN, J. The petitioner, Joseph M. Behrendt, having been held by a United States Commissioner for extradition to Prussia on the charge of forgery, under the treaty of June 16th, 1852, (10 U. S. Stat. at Large, 964,) has been brought before me upon habeas corpus, together with the record of the proceedings, under a writ of certiorari. The discharge of the prisoner is sought upon two grounds-that the evidence of forgery is insufficient to hold him; and that the documentary proof received by the Commissioner is not properly authenticated.

The evidence of criminality is drawn wholly from the documentary proofs, consisting of depositions taken in Prussia. These depositions purport to be taken in penal or criminal proceedings against the petitioner there; and, in some of the papers, it is expressly stated, that they are taken in a criminal Court, and on the charge of forgery. These proceedings are certified by the royal Prussian judge of the Court at Marienburg, who certifies that "this judicial proceeding, with respect to its form, is valid evidence according to the laws existing in Prussia." The signatures are certified as required by the Act of August 3d, 1882, section 5, (22 U. S. Stat. at Large, 216;) and the whole is finally authenticated by the United States minister at Berlin, who certifies that the signatures are genuine, that the documents are entitled to full faith and credit, and that the said "documents, which are intended to be offered in evidence upon the hearing within the United States of an application for the extradition of Joseph Moses Behrendt, under title sixty-six of the Revised Statutes of the said United States, and for all the purposes of such hearing, are properly and legally authenticated, so as to entitle them to be received for similar purposes by the tribunals of Prussia."

Section 5 of the Act of August 3d, 1882, restores, in substance, the provisions of the Act of June 22d, 1860, (12 U. S. Stat. at Large, 84,) as respects the mode of authentication, and supersedes the provisions, on that subject, of § 5,271 of the Revised Statutes as well as those of the Act of June 19th,

In re Joseph M. Behrendt.

1876, (19 Id., 59.) The certificate of the royal judge, that the judicial proceeding certified to "is valid evidence according to the laws existing in Prussia," reasonably interpreted, can mean nothing less than that, according to the law of Prussia, such documents are valid evidence of criminality, as regards the crime charged in the proceedings specified in the Court where the proceeding purports to be had. This is all the evidence that is required under the first branch of the statute; since the proceeding appears, upon its face, to be a criminal one, and in a criminal court, upon a charge of forgery.

The final authentication by the United States minister is in the exact language of the statute. Whatever ambiguity there may be in the statute, from the use of the words "similar purposes," there is no greater ambiguity in the certificate itself; and, as it exactly conforms to the statute, it must be held to mean whatever the statute means, and cannot, therefore, be held defective. (In re Farez, 7 Blatchf. C. C. R., 345, 353; In re Wadge, 15 Fed. Rep., 864, and 21 Blatchf. C. C. R., 300.)

In In re Fowler, (18 Blatchf. C. C. R., 430, 437,) Blatchford, J., says, in reference to the final certificate of the principal diplomatic officer of the United States: "Such certificate, if in proper form, is absolute proof, whatever may be the tenor of the certificates of foreign officials to the same documents." By this rule, even if the previous authentication were defective, the final certificate of the United States minister would supply the defects; but, for the reasons above stated, there are no substantial defects in the certificates of the Prussian authorities.

The documentary evidence, therefore, being competent evidence, the decision of the Commissioner upon the weight of proof would not be interfered with on habeas corpus, unless there be clear insufficiency in the evidence to afford a prima facie case against the petitioner. The evidence in this case, though circumstantial, bears so strongly against

The Good Hope Company v. The Railway Barb Fencing Company.

him, that I am not authorized to interfere with the Commissioner's conclusion in this respect.

The application for the release of the prisoner must, therefore, be denied, and the prisoner remanded to the custody of the marshal.

A. L. Sanger, for the petitioner.

Edward Salomon, for the Prussian Government.

THE GOOD HOPE COMPANY

vs.

THE RAILWAY BARB FENCING COMPANY.

A foreign corporation had no office or place of business within the State of New York, and was not engaged in business there, but had occasionally purchased goods there, through an agent sent there. Its president went into that State to adjust a controversy between it and the plaintiff, growing out of such a purchase, and was there served with the summons: Held, that the corporation was not "found" in the District, within the meaning of § 739 of the Revised Statutes, so as to be liable to service of the process.

(Before WALLACE, J., Southern District of New York, December 30th, 1884.)

WALLACE, J. The question raised by this motion is, whether jurisdiction is acquired, in an action brought against a foreign corporation, by the service of process on its president while in this District, although the corporation has no office or place of business within this State, and is not engaged in business here, except that it has made occasionally a purchase of goods, by sending an agent here for that purpose. Its president came here to adjust a controversy between it and the plaintiff, growing out of such a purchase, and was then served with the summons in this action. Stated in another form, the question is, whether a foreign corporation is "found" here, within the meaning of § 739 of the Revised

The Good Hope Company v. The Railway Barb Fencing Company.

Statutes of the United States, for the service of process, when its president is temporarily here upon the business of the corporation.

Jurisdiction of the person is acquired by the Courts of the United States only when the party sued "is an inhabitant " of, or "found" within, the district where the writ is served; and the laws of the State can neither extend nor restrict the conditions upon which jurisdiction depends. It was intimated, in Merchants' Manufacturing Co. v. Grand Trunk Railway Co., (21 Blatchf. C. C. R., 109,) that a commercial corporation may be deemed constructively present, for the service of process upon it outside of the State of its incorporation, wherever it has property and carries on its operations by its agents; but the point was not decided, because it was not necessary to decide it in that case. Some of the authorities upon that subject are cited in the opinion in that case. When a corporation has so far identified itself with a locality beyond the State of its creation and domicile, as to be found there for practical business purposes, it is reasonable to treat it as there, also, to respond to its obligations, when called upon to do so in the Courts of that locality. Accordingly, the tendency of later judicial opinion is in favor of relaxing the strictness of the former rule, that process against a corporation must be served on its head or principal officer within the jurisdiction of the sovereignty where this artificial body resides. The inconvenience and practical injustice of permitting corporations to invoke the comity of a foreign State for the exercise of their franchises and the transaction of their business, and at the same time to obtain exemption from suit, have been met by legislative enactments, in many States, authorizing the service of process, in such cases, upon the agents of the corporations. The judgments obtained in suits thus commenced, by service upon agents, pursuant to the laws of the State, are valid everywhere, provided the corporation was engaged in business in the State, and service was made upon an agent there, actually representing the corporation at the time.