The defendants moved to substitute in their place as defendants one Marcus Ball, on the ground that said Ball, by his agent, advanced the money to John A. Bidwell, to purchase butter in question in this action. The butter when purchased was to be stored with the defendants, in the name of and for the benefit of said Marcus Ball It is further claimed by the defendants that Bidwell, in violation of his duty, deposited the butter with the defendants in his own name, taking a receipt therefor, and that he afterwards fraudulently sold the said butter to the plaintiff, and by indorsement on the receipt given by the defendants, directed the delivery of the property to said plaintiff. Ball claims and insists that Bidwell is insolvent, and that unless he (Ball) is permitted to come in and defend, he will lose the property in dispute in this action.
It was denied by the plaintiff that Marcus Ball advanced the *257money to buy the butter, and that when purchased it was to be deposited in Ball’s name with the defendants, and that the sale to plaintiff was fraudulent. On the contrary, it is alleged that Bidwell advanced the money himself, purchased the butter on his own account, deposited it in his own name, and sold it in good faith to the plaintiff.
The interest of Ball in the property being so flatly denied, I referred it to L. Livingston, Esq., as referee, to take proof upon this question, and to report the same, with his opinion, to the court. The referee reports that when the action was brought, Marcus Ball had an interest, as claimed by him, in the property; but the referee further finds that the sale to the plaintiff was made in good faith, and for that reason Ball had no interest in the property.
The question now arises, Are the defendants entitled to have Ball substituted in their places in this action?
Code, § 122, provides that a defendant, against whom an action is pending upon a contract, or for specific real or personal property, may at any time before answer upon affidavit, &e., apply for an order to substitute such person in his place, &e., &c.
It has been held under this section that it introduces no new cause of interpleader, but merely provides a summary mode of relief. (Sherman a. Partridge, 1 Abbotts' Pr., 260; 11 How. Pr., 154; 4 Duer, 646.)
It follows from this that the interpleader now is limited to the same cases in which it was allowed in chancery. Mr. Justice Story (2 Story's Eq. Jur., §§ 816, 817) holds tlie rule to be, that in equity, as at law, a bailor or agent cannot dispute the original title of the person from whom he received the property; and, hence, such bailor or agent could not file a bill in equity to settle the conflicting claims of the bailor or principal and a stranger who claims the property by a distinct and independent title.
The chancellor, in Marvin a. Elwood (11 Paige, 376), expresses a doubt whether some of the cases cited by Justice Story can be reconciled with the principle which the learned commentator deduced from them. Yet the chancellor admits that he is right so far as regards a strict bill of interpleader, and upon the authority of the principle cited, the chancellor *258held that an attorney-at-law could not maintain a bill of inter-pleader to settle the claim to money which he has collected for his client, when a mere stranger claims the money on the ground that the security on which the money was collected was obtained originally by the client wrongfully.
Vice-chancellor Edwards (3 Edw., 191) came to a different conclusion from that arrived at by Justice Story, as early as 1838. The chancellor must be- understood as overruling the vice-chancellor, so far as the latter held an agent or bailor entitled to maintain a strict bill of interpleader.
The defendants are bailors, the plaintiff stands in the position of principal, and Ball is a claimant of the property on the ground that the act of the original bailor violated his duty to said Ball, and the purchaser did not obtain his title in good faith.
If an attorney-at-law could not interplead his client and a stranger claiming money by a similar title; I can presume no reason why the defendants should be permitted to substitute Ball in their stead in this suit.
I very much doubt whether a party is entitled to interplead, unless he is able to comply with the provisions of section 122 of Code. The statute requires certain things to be done in order to entitle the party to relief, and the court has no power to dispense with these conditions. One of these conditions is, that the money or property shall be brought into court. This is for the benefit of both the plaintiff in the action and of the party proposed to be made defendant. In this case the defendants have not got the property, it cannot be brought into court, and the condition cannot be complied with. It is not enough that Ball, who is to be benefited by this substitution, is willing to waive this condition, nor that the plaintiff has actually got it in his own possession. The object of the interpleader is to settle the conflicting claims to the property, and when that controversy is settled, the property must be within the power of the court, so that it may be delivered to the successful party. If Ball should be substituted, and establish his claim, he cannot get the butter—he must take his chances of collecting its value, unless the plaintiff should voluntarily surrender it.
I am, therefore, of opinion that the motion should be denied, with ten dollars costs.