Gaines v. City of New Orleans

27 F. 411 | U.S. Circuit Court for the District of Eastern Louisiana | 1886

Billings, J.

The question submitted is whether the sum of $40,-000, on deposit with the Louisiana National Bank, shall be deposited in the registry of the court. The hank has been garnished; lias no interest in the money; holds the same as the fiscal agent of the defendant. The money is claimed by the plaintiff under her writ of execution, by the gas-light company under an ordinance of the city of New Orleans, and by the hoard of liquidation. The plaintiff and the gas-light company unite in the motion for an order requiring the deposit.

The execution under which the money was seized issued in an equity cause. Under the practice in the courts of the state of Louisiana such an order would not be made; under the practice of the courts of chancery such an order would be made. 3 Daniell, Ch. Pr. 1819 et seq.; Jeremy, Eq. Jur. 254. It is not necessary to show that the fund is in danger, but merely that the plaintiff is solely entitled, or has such, an interest jointly with others as to justify him on behalf of himself and them to have the fund secured. In all equity causes the chancery rules are followed 'to the exclusion of state practice. In Bein v. Heath, 12 How. 178, Taney, C. J., says: “The proceeding in a circuit court of the United States is regulated by the laws of congress, and the rules of this court made under the authority of an act of congress.” This case holds that even by a rule of the circuit court the equity practice cannot be departed from. The conclusion, therefore, is that the equity practice is to govern, and that that practice requires the court, that all parties who can by possibility have an interest in the fund, except a fraction of the defendfendant, unite in the application, the court ought not to refuse to order the deposit because the stakeholder, who is the agent of the defendant, also resists.

The order will therefore he entered.