at

overrulil"\gtne:d,eJllurrer, so the ctt,eca.n be noticed for trial term of this cOurt. , . .. . petxl.urrer overruled, with leave to reply, if thought necessary, within 304"ys.

UNITED STATES V. ENGEMAN et· ill. I

(DistriCt

Oourt, E. D. Nf!IW York.

.March 28, 1891.)

LCoURTB-PROCEEDlNG TO 'CONDEMN LANDS FOR UNITED STATES'-WHERE BROUGHT.

llrOt'ecding to condemn lands for the use of the United States, under the pro:visions of the net of congress of August 18, 1800; entitled"An act making pdations for fortifications and other works of defense," etc., ill properly brought in a court of the United States. . In prot'eeding the practice should be in substantial conformity with the practice pursued in the courts of the state when similar llroceedings are there in. . stituted.

2.

EMINENT.DOMA.IN-FOLLOWING STATE :rRiCTICE.

A(Law. On the jurisdiction. The United States filed this petition in this court to condemn a pal't of Plum Island. The'statute of .the United Statesauthorizingthe condemnation was the act Of August 18, 1890, in which was the provision . that the proceedings were to be prosecuted Clin accordance with the laws" of the state in reference to similafproceedings. The law of New York state is the general statute of 1890, (Sess. Laws 1890, p. the provision of which was as follows: ClThe proceeding shall be insti.tuted by the presentation of a petItion by the plaintiff to the supreme court." The defendants excepted to the jurisdicti?n of this, court, claiming that der the words of the two statntes in question the petition must be presented to the supreme court of the state. Thomas E. Pearsall, (R. D. Benedict, of counsel,) fqrdefendant. Jesse Johnson, U. S. Dist. Atty. BENE1)ICT, J. This caS(l comes before the COUl,'t upon an exception to the jurisdiction., It is a proceeding in the name of the United States to certain land·, for the use of the United States, under a provision of law contained in the ll,ct "for making appropriations for fortifications l;l,nd other works of passed August 18, 1&90." This statute contains the following provision: "Hereafter the secretary of war may cause proceedings to be instituted in the name of the Unitlld ,&tates in any court having jurisdiction of sllch proQe;edings, for the acquirement by condemnation of any laud, or ipg thereto, needed for the site, location, construction, or prosecutIOn of works for fortifications and coast proceedmgs to be be prosecuted in accordance with the laws relating to suits fOI" condemnation of property of the states wherein'the proceeding may be instituted." ' .
lReported by Eldward G.Benediot, Elsq_, of the New York bar.

FLOUR CITY 'NAT.

BANk:f7.

WECHSEJ,BERG.

547

The contention on the part of the defendant is thatthe requirement in this statute that the proceeding be prosecuted 'lin accordance with the laws relating to suits for the condemnation of property of the states wherein thlf, proceeding may ,be instituted" makes it necessary that the proceeding be conducted under the statute of the state of New York, (Laws 1890, c. 9.5;) and in the supreme court of the state. This construction 'of the statute won1d exclude the United States from its own' courts, and make the acquisition of property for the fortifications and coast defenses of the United States to Clepend upon the action of the state, tprough the state tribunals. Such, in my opinion, was not the inte'n.:: tion of the statuteo All that was intended was tq 'require that when pro-' ceedings for the condemnation of land for the fortifications and coast defenses of the United Statesnre taken in the courts of the United States the practice in such proceedings shall be in substantial conformity with the practice pursued in the courts of the state when, similar proceedings are there instituted. This construction is confirmed by the provision in this statute which authorizea the institution of such proceedings "in any courts having jurisdiction of such proceedings." If it had been intended that the words "any courts" as here used should not include the courts of the United States, such intention would have been manifested by appropriate language. This view of the law makes it unnecessary to determine whether the state court would have jurisdiction of a proceeding like this when taken by the United States; proceedings taken for the condemnation of real estate by virtue of the state statute of April 4, 1890, being limited, by the words of the act, to cases where the petition is filed by a corporation, a joint stock association, the state, and a political division thereof, or a natural person. The exception is overruled, and the defendants directed to answer in five days.

FLOUR CITY NAT. BANK 'D. WECHSELBERG

et al.

(Oircu(t Oourt, E. D. Wi8consin. March 28, l891.)
1.

In an action to enforce the personal liability of stockholders, under Rev. St. Wis.
LIABILITy-PARTIES.

never been subscribed for, and 20 per cent-thereof had never been paid in, the company, though a proper, is not an indispensable, party.
I.

SAME-AoTION AT LAW.

S 1778, for a corporate obligation contracted when one-half the capital stock had
,

The liability is absolute, arising upon the creation of the obligation, and limited only by the debt contracted, and does not fall within the provision of Rev. ,St. Wis. § 3224,that the court, "when necessary," shall cause an account to be taken of debts due to 'and from the, corporation, shallappoint a receiver, etc.', but may be enforced by action at l a w . ' , A complaint in an action to enforce the ,PersonalliabiUty of stockholders, which charges that defendantil"were all of the stockholders" of the corporation, though possibly obje,Qtionable, on 1Ij motion to make more definite and certain, ,will not be held demurrable, as failing to charge that defendants were stockholders. '

8.