In proceedings to extradite one charged with bank robbery in British Columbia, admission in evidence of depositions authenticated by certificate of United States consul in manner prescribed by Comp. St. §§ 10111, 10116, and photograph of one of bank robbers, authenticated by two witnesses, and attached to depositions which appeared to be likeness of accused, held proper method of proving identity. 2. Habeas corpus 87-Dismissal of proceedings without affording one held for extradition opportunity to introduce evidence held not error.

Rem. & Bal. Code Wash. § 1949, does not forbid one accused in extradition proceedings from introducing evidence on his own behalf before committing magistrate, and accused, who has had opportunity to so do and has declined, may not complain that subsequent habeas corpus proceedings are dismissed without his being given second opportunity.

McCAMANT, Circuit Judge. A warrant was issued in the county of Victoria, British Columbia, for the arrest of appellant on a charge of bank robbery. On the 9th of January, 1925, Bert C. Ross swore to a complaint before Mitchell Gilliam, one of the superior judges of King county, Wash., charging that appellant had fled from British Columbia and was then in King county, Wash. Appellant was arrested on a warrant based on this complaint. A hearing was had before Judge Gilliam on the 12th and 13th of January, at which appellant was represented by counsel. Judge Gilliam ordered appellant held in the custody of appellee until delivered up on requisition of the prop

er authorities of British Columbia in accordance with the Extradition Treaty between the United States and Great Britain (26 Stat. 1508). Appellant thereupon filed a petition for habeas corpus in the District Court of the United States for the Western District of Washington, Northern Division. He attached to his petition a copy of the before Judge Gilliam. proceedings had When appellee had answered, the District Court dismissed the writ and remanded appellant.

In re

[1] The offense with which appellant is charged is extraditable under our treaty with Great Britain. Powell v. United States, 206 F. 400, 402, 403, 124 C. C. A. 282. It appears affirmatively that Bert C. Ross, who made complaint before Judge Gilliam, was duly authorized so to do; the proceeding is therefore one brought by the proper representative of the demanding state. Kelly (C. C.) 26 F. 852, 856; In re Herris (C. C.) 33 F. 165, 166. Depositions taken in British Columbia were received in evidence; these depositions were duly authenticated by the certificate of the United States consul at Victoria in the manner and with the effect prescribed by sections 10111 and 10116 of the Compiled Statutes. A photograph of one of the robbers, authenticated by two witnesses, is attached as an exhibit to these depositions, and it appears that this is a photograph of appellant. This was a proper method in which to prove the identity of appellant with the robber. Glucksman v. Henkel, 221 U. S. 508, 513, 31 S. Ct. 704, 55 L. Ed. 830. There was abundant proof to satisfy the requirement of probable cause.

[2] The only ground on which the proceedings are attacked on this appeal is that the petition in habeas corpus was dismissed on the pleadings, and appellant was given no opportunity in the District Court to prove that he was not in British Columbia on the 12th of December, 1924, when the crime was committed. The record shows that appellant had this opportunity at the hearing before Judge Gilliam, and that he declined to offer any proof. It is argued that the Washington statute (section 1949 of the Remington & Ballinger Code) does not authorize a party accused of crime to introduce evidence in his own behalf before a committing magistrate. The statute does not forbid the introduction of such evidence, and Judge Gilliam was warranted in extending to appellant the opportunity to make his proof. Appellant having had an opportunity to be heard, and the proceedings being otherwise regular, the commitment was proper. The

facts fully appearing from the exhibits at tached to appellant's petition and appellee's return to the order to show cause, the District Court did not err in dismissing the petition without taking evidence.

The decree is affirmed.

HUCKABEE v. PULLMAN CO. (District Court, S. D. Georgia, Albany Division. August 17, 1925.)

1. Corporations 662, 668 (10)-Essentials of suit against foreign corporation as to doing business in state and agent for service thereon stated.

The essentials for a suit against a foreign corporation are that it shall be engaged in business in the state, and under Civ. Code Ga. 1910, § 2258, that service be made upon an agent who represents the corporation in its business or by leaving the process at the place of transacting the usual and ordinary public business of such corporation.

the office and place of doing business of said corporation," but which failed to state that it ordinary public business of such corporation," was "the place of transacting the usual and held insufficient under Civ. Code Ga. 1910, 2258.

At Law. Action by Thad Huckabee against the Pullman Company. On plea in abatement and traverse to return of service. Overruled.

Pope & Bennet, of Albany, Ga., for plaintiff.

Dorsey, Howell & Heyman and Mark Bolding, all of Atlanta, Ga., for defendant.

BARRETT, District Judge. Huckabee brings suit against the Pullman Company in tort for an alleged assault by the porter of the latter while Huckabee was a passenger on its car in movement from Albany, Ga., to Atlanta, Ga. Challenge is made as to the validity of the service.

The facts are not in dispute. The issue

It is not essential to an agency that there shall be an actual contract between the parties or that compensation should be paid or expected by the agent.

3. Principal and agent

tween parties may create agency.

If relations exist which will create an agency, it will be an agency, whether the parties understood it to be or not.

4. Corporations 668 (10)-Agency of foreign corporation for purpose of service of process.

By a contract between them, the Pullman Company agreed to furnish cars to be hauled over the lines of a Georgia railroad company,

and the latter agreed to require its ticket agents to sell tickets for such cars without charge to the Pullman Company. Under that arrangement ticket agents of the railroad company sold tickets furnished to them by the Pullman Company and accounted therefor directly to that company from which they received instructions. Held that they were agents of the Pullman Company who represented it in its business and on whom service of process might legally be made in a suit against it, under Civ. Code Ga. 1910, § 2258.

5. Corporations 668 (4)-Service of process against foreign corporation may be made on others than those designated by it.

That a foreign corporation has designated certain persons as its agents for service in the state does not render invalid service of process against it on others, who are in fact its agents for that purpose under the provisions of the state statute.

6. Corporations 668 (13)-Return of service on foreign corporation held insufficient.

A return of service of process on a foreign corporation, by leaving a copy of the writ "at

its line of railway, and the railway covenanted that it would "require its ticket agents, at such offices as may be mutually agreed upon, to sell tickets for seats and berths in such cars without charge to the Pullman Company, the proceeds of such sales to be at the risk of the Pullman Company." Five railroads doing business at Albany, including the Central of Georgia Railway, organized the Albany Passenger Terminal Company; each of the railroads owning a proportionate part of the stock of such company. The Terminal Company employed a ticket agent, R. E. Davis, and a ticket seller, W. F. McClellan. Such agent and seller received no compensation from the Pullman Company and were not subject to discipline or discharge by it. The Pulltickets representing spaces on the pullman man Company furnished them with blank cars operated over the railroads, including the Central of Georgia Railway from Albany, Ga., to Atlanta, Ga., such tickets being furnished direct to Davis by the Pullman Company's representative in Chicago, on requisitions signed by Davis. Tickets thus furnished were sold by the said agent and seller. The said agent accounted directly to the Pullman Company and made remittances directly to the Pullman Com

pany for all moneys received on its account. The acts of said agent were checked up twice a year by the traveling auditors of the various railroads. Said agent and seller used, as a part of their regular office equipment, a pamphlet book of instructions furnished by the Pullman Company as to how to handle its tickets and the diagrams of its cars and were furnished and used Pullman tariffs, the same being copies of the tariffs filed by the Pullman Company with the Interstate Commerce Commission. When the agent was in doubt as to the meaning of the instructions, or as to how he should act in reference to the affairs of the Pullman Compay, he corresponded direct with the general passenger agent of the Pullman Company in Chicago, Ill. The Pullman ticket involved in this case was purchased by the plaintiff from the conductor of the pullman car on which he traveled. The said agent made no report of any of the Pullman Company business to either said Terminal Company or any of the railroads; the business and funds and reports of the Pullman Company being kept entirely separate and distinct from the business and funds and reports of the Terminal Company and railroads. All correspondence from the Pullman Company received by the said agent Davis was addressed to "Mr. R. E. Davis, D. T. A., Central of Ga. Ry., Terminal Station, Albany, Ga."

The Pullman Company did on the 21st day of January, 1924, through W. M. Camp, its agent, Atlanta, Ga., register with the Comptroller General under paragraph 49 of the General Tax Act of 1923,1 in which it was set forth that, in addition to the said W. M. Camp, the agents of the Pullman Company in Georgia were G. F. Stavro, Augusta, Ga., and J. E. Breaux, Savannah, Ga.

The return of the sheriff was as follows: "I have this day served the defendant, the Pullman Company, a corporation, both by serving its agents, R. E. Davis and W. F. McClellan, in said county, with a copy of the within writ and process, each personally, and also by leaving a copy of said writ and process with the said R. E. Davis and the said W. F. McClellan, each at the office and place of doing business of said corporation, in said county."

The plaintiff contends that the service was good for two reasons, namely: (1) Because R. E. Davis and W. F. McClellan were agents of the Pullman Company; and (2) because the writ and process were left "at

1 Laws Ex. Sess. 1923, p. 35.

the office and place of doing business of said corporation, in said county."

[1] 1. The essentials for suit against a foreign corporation are that it shall be engaged in business in this state and that service must be upon an agent who represents the corporation in its business or, as to service, by leaving the writ or process "at the place of transacting the usual and ordinary public business of such corporation." Civil Code of Georgia 1910, § 2258; Peterson v. C., R. I. & P. Ry., 205 U. S. 364, 390, 27 S. Ct. 513, 51 L. Ed. 841.

It is undisputed that the Pullman Company was doing business in Georgia at the time of the alleged injury as well as at the time of the service and that Davis occupied to it the same relationship at both of said periods.

The controlling question is: Was R. E. Davis an agent of the Pullman Company who represented such corporation in its business? It is not deemed important to consider the relationship of McClellan separately.

The principal urge made by the defendant is that Davis was not in the employ of the Pullman Company, and therefore could not be its agent, and that, even if the Central of Georgia Railway Company was under the contract the agent of the Pullman Company, and if by acquiescence the Albany Terminal Company was treated by the Pullman Company as taking the place of the Central of Georgia Railway in this particular, the service could not be good because you cannot serve process by serving an agent of an agent. Numerous authorities are cited to sustain this proposition, the controlling principle of which is substantially set forth in Barnard v. Springfield Traction Co., 274 Ill. 148, 113 N. E. 89, L. R. A. 1916F, 451, and Chicago, B. & Q. Railroad Co. v. Weber, 219 Ill. 372, 76 N. E. 489, 4 L. R. A. (N. S.) 272.

The Central of Georgia Railway did not undertake to act as agent of the Pullman Company and the Pullman Company did not undertake to appoint or employ the Central of Georgia Railway as its agent. It follows, a fortiori, that the Albany Terminal Company was not the agent of the Pullman Company. The service therefore was not valid, if it depended upon the proposition of serving the agent of an agent. It narrows to the clear-cut question as to whether, under the foregoing facts, Davis was in fact the agent of the Pullman Company, though not so designated either by himself or by the Pullman Company.

There can be found many definitions of agency. In a number of instances the language would indicate that employment, coupled with the right to discharge or discipline, was an essential element. Under the peculiar facts of many cases this element might be controlling. But this element is not incorporated in many definitions of agency and is not an essential in many instances. Perhaps the following is as accurate a general definition as can be made: "An agency has been defined as a contract, either express or implied, by which one of the parties confides to the other the management of some business to be transacted in his name, or on his account, by which that other assumes to do the business, and to render an account of it." 21 R. C. L. 817. [2] It is common knowledge that in many instances an agent is appointed where there is no question of employment or compensa tion. "It is not essential that any actual contract should subsist between the parties or that compensation should be expected by the agent." 21 R. C. L. 817, citing Doran v. Thomsen, 76 N. J. Law, 754, 71 A. 296, 19 L. R. A. (N. S.) 335, 131 Am. St. Rep. 677.

[3] It is not necessary that the parties shall understand among themselves that there is to be an agency. "If relations exist which will constitute an agency, it will be an agency, whether the parties understood it to be or not. Their private intentions will not affect it." 21 R. C. L. 819, citing Bradstreet Co. v. Gill, 72 Tex. 115, 9 S. W. 753, 2 L. R. A. 405, 13 Am. St. Rep. 768, and Taylor v. Conner, 41 Miss. 722, 97 Am. Dec. 419.

[4] The business of the Pullman Company in Georgia is not merely to furnish cars to be transported by the railroads, but also to reserve space and sell tickets. This is just as much a part of the business of the Pullman Company as is the selling of railroad tickets a part of the business of the railroads. It is through this ticket agent, Davis, that the Pullman Company enters into contracts with the public. It is through him that the patrons of the Pullman Company are furnished with evidence of the duty of the Pullman Company to such patrons. When the Central of Georgia Railway obligated itself to "require its ticket agents to sell tickets for seats and berths in such cars without charge to the Pullman Company," did it not in effect say that it would require its agents to act as agents of the Pullman Company without charge to the Pullman Company and to

do for the Pullman Company exactly what would be done by any other seller of pullman tickets who might be in the employ of the Pullman Company itself, namely, to sell to would-be patrons of the Pullman Company tickets, or contracts representing rights of the patrons, receiving money therefor and accounting for such money to the Pullman Company, and receiving from the Pullman Company instructions as to how the business should be conducted? Is there not here every element of agency as defined above? As between the Pullman Company and the public, the agency is as fully established as if the Pullman Company employed, paid, disciplined, or discharged, rather than adopted as agent a person whom the Albany Terminal Company employed, paid, disciplined, or discharged. The fact that Davis was the agent of the Central of Georgia or of the Albany Terminal Company for the purpose of carrying on the duties intrusted to him by them would not in any way interfere with his being the agent of the Pullman Company. The Pullman Company, as principal, intrusted to Davis, as agent, the management of a part of its business in Georgia, and Davis undertook to account therefor. This constitutes Davis an agent upon whom service can be made under section 2258 of the Civil Code of Georgia 1910, and the service in this case is valid and binding. It follows that the plea in abatement and traverse to the return of the sheriff will be overruled.

[5] 2. The fact that the Pullman Company has designated three agents in Georgia as being their only agents is of no effect in the determination of this question. It may in perfect good faith claim that it recognizes no other such agents, but it is the substance and not the name which controls. If such designation were permitted to be controlling, the Pullman Company could nullify the law as to venue, and could require in many instances plaintiffs to seek recovery in far distant parts of the state.

[6] 3. The return as to leaving the writ and process at the place of business is not sufficient to make the service effective. The statute provides that service can be made

that it was "the place of transacting the usual and ordinary public business of such corporation."

STAR BALL PLAYER CO. v. BASEBALL DISPLAY CO., Inc.

(District Court, D. New Jersey. July 22, 1925.)

1. Patents 243-Defendant, gathering different elements into one combination, cannot deny infringement because all elements can trace their lineage to the prior art.

Defendant may not search through the limits of the prior art, gathering different elements, and building them into a combination, and deny infringement because all the elements can trace their lineage to the prior art, if the use made thereof produces virtually the same combination already obtained by an earlier patentee. 2. Patents

129-Defendant, adopting construction of patented baseball board, estopped to deny its utility.

Where defendant adopted construction of patented baseball board to all intents and purposes for its own use, such procedure was probative of the fact that defendant considered the device useful, and it was therefore estopped from denying its utility.

3. Patents 283 (2)-Patentee's right to injunction not defeated because defendant had ceased manufacture and exploitation of infringing machine.

In patentee's suit for injunction for infringement of patented baseball board, that defendant had apparently ceased manufacture and exploitation of infringing machine did not defeat plaintiff's right to relief, since a new offense might be undertaken at any time.

4. Patents 328-Oscanyan patent, No. 1, 321,940, for baseball board, claims 11, 12, 21, 23, and 24 held infringed.

Oscanyan patent, No. 1,321,940, claims 11, 12, 21, 23 and 24, for a baseball board, designed to visualize for spectators the various plays in a game of baseball, held valid and infringed.

In Equity. Patent infringement suit by the Star Ball Player Company against the Baseball Display Company, Inc. Decree for plaintiff.

Meyers & Cavanagh, of New York City (T. J. Johnston, of New York City, of counsel), for plaintiff.

Moses & Nolte, of New York City, Heine, Bostwick & Bradner, of Newark, N. J., and Milans & Milans, of Washington, D. C. (Edmund Quincy Moses, of New York City, M. Casewell Heine, of Newark, N. J., and Calvin T. Milans, of Washington, D. C., of counsel), for defendant.

RUNYON, District Judge. The plaintiff above named has brought suit herein alleg

ing infringement by the defendant, during the year 1922, of letters patent No. 1,321,940, issued to Paul C. Oscanyan, bearing date November 18, 1919, the application for which was filed April 28, 1917.

The device in question represents a baseball field, arranged on a vertical plane, and is designed to vizualize for spectators the various plays in a game of baseball, being manually operated for that purpose by attendants standing in the rear, and acting upon detailed information conveyed to them from the playing field by telephone or telegraph.

While a miniature representation of a baseball in action forms part of the display, and is moved over the surface of the board to various positions to illustrate the plays as they occur, the present suit has nothing to do with that feature of the mechanism, but is concerned only with that portion thereof which shows the progress of the runners about the bases, or the fate which befalls those who are unsuccessful in their at-, tempt to complete the circuit.

The plaintiff's board has openings or slots, in the paths leading from base to base; and behind these, but showing through such open spaces, is passed a white object representing an individual runner. At the intersection of the various base paths, and representing, respectively, first, second, and third base, and home plate, are other openings, and the subject of the combinations of the claims is the means provided for obscuring these openings as desired, so that the white object representing the runner will pass behind such contrivance and out of sight, and in so doing portray the player as put out.

Another point of advantage claimed by plaintiff is the presence of so-called stops for the base runner, located at points adjacent to the base openings, and so designed as to allow the operator to set the stop and shield at the base opening in such fashion as will cause the base runner, without further manipulation, to perform his part as the operator has designed, thus affording the operator, after arranging the base runner's part, an opportunity to attend to some other play which may have occurred simultaneously on the playing field, and which consequently demands simultaneous representation on the board.

The claims in suit are Nos. 11, 12, 21, 23, and 24, and are as follows:

"11. A bulletin board comprising a member representing a field, said member having