(concurring)'.
The bond is ample to pay all claimants. There is no ground for a federal inter-pleader.
If the case were in a jurisdiction where English equity is administered, the surety, though he has paid out nothing, would be entitled to go against his principal for exoneration and have brought in for application to the creditors’ claims the unpaid balance due on the building contract, making the claimants parties merely to receive their money, and not to delay or impede them. 21 R.C.L.Princ. & Sur., Sects. 146, 150; 50 C.J., Prin. & Sur., Sect. 396. Glades County v. Detroit Fid. & Surety Co., 5 Cir., 57 F.2d 449; Republic Natl. Bank v. Massachusetts Bonding & Ins. Co., 5 Cir., 68 F.2d 445. But English equity is not administered in Louisiana, and no equivalent of the equity of exoneration is found in the Civil Code. But I think the surety may provoke a statutory concursus. The surety was allowed to do this under Louisiana statute relating to private building contracts in National Sash & Door Co. v. Continental Casualty Co., 5 Cir., 37 F.2d 342. The public building statute here involved does not expressly say the contract- or or the surety may provoke the concursus, but does not forbid it. A concursus 'brought by the surety was entertained without objection in United States Fidelity & Guaranty Co., 178 La. 87, 150 So. 840. In Mahoney v. Louisiana Highway Commission, 154 La. 383, 97 So. 582, it was held that where there are outstanding claims the contractor not only can provoke a conscursus under the statute, but cannot sue the owner for the balance due in any other way. The contractor here is doing nothing towards settling the business, and I think the surety has the same right and duty to provoke the concursus.
But he cannot proceed in the federal court for lack of diversity in citizenship between the parties to the controversies he sets forth. The principal controversy he alleges is whether the University owes the contractor, and how much. The contractor’s interests are adverse to the University and he must be aligned with the plaintiff; and having the same citizenship as the University, diversity fails. Again the surety denies that the contractor owes the claimants who are joined, and in the controversies with each of them the contractor must be aligned with the surety, and again diversity of citizenship is defeated. There is not federal jurisdiction, and the action was properly dismissed on that ground.