'Section 2144 of the Code of 1852, which is substantially the same as section 2633 of the present Code, at least, in so far as the question here involved is concerned, received a construction by this court in the ease of Nelson v. Goree’s Admr., 34 Ala. 574. In Nelson’s Case, this court cites approvingly- the case of Sherman v. Partridge, 11 How. Pr. Rep. 154, in which latter case the New York -statute, which is substantially the same as ours, was construed by the New York court. The claim of the party offered to be substituted as de*618fendant, to the debt or money in controversy in the case of Sherman v. Partridge, was based upon a state of facts strikingly similar to the case at bar, and, indeed, in principle there is no distinction. In that case, as in the case before us, the plaintiff’s suit was for the contract price of goods sold the defendant. There the log-wood sold to the defendant was claimed by the claimant, the party offered to be substituted, as his property, and it was further claimed that Searle, who sold the same to the defendant, had no title or right to, and no authority to sell, or in other words that Searle was a conversion-er. Here the timber sold by plaintiff to the defendant is claimed by Coleman, the substituted defendant, and it is further claimed that it was converted by the plaintiff. In that case the plaintiff, it is true, was a transferee of the debt or demand sued upon, and an express promise was made to him by the defendant, at the time plaintiff purchased the debt from Searle, to pay plaintiff. But the court does not rest its decision alone upon this state of facts, and says: “Nor is it only upon the ground that lias been stated that I must refuse, by substituting Uelafield, to discharge the-defendants. Had this action been brought by Searle himself, or by the plaintiffs merely as assignees, I must still have said that the facts do not exhibit a case for an interpleader under a just construction of the Code. The plaintiffs seek to recover a debt arising upon contract; but Uelafield is not a ‘third person, nor a party to the suit making a demand for the same debt,’ as the words of the Code require him to be, to justify an order for his substitution. As he denies that Searle had any authority to make the sale, his demand as owner is for the logwood itself, or its value, which may be greater or less than the price agreed to be paid; and 'at any rate, is not a debt, of which, as such, he may compel the payment.” This case was again cited approvingly by this court in the case of Johnson v. Maxey, 43 Ala. 521. In all of the cases construing this statute or similar statutes, in the substitution of the so-called claimant as defendant, the test seems to be, whether or not the party sued could upon the same state of facts maintain his bill of inter-*619pleader in a court of equity. In Johnson v. Maxey, supra, page 541, it was said by this court, quoting from Sherman v. Partridge, et al. “In that case, tlie court says: ‘Tlie provisions of tlie Code, like those of the English statutes, Avere certainly not designed to introduce neAV cases of interpleader, but merely to enable defend-' ants, in cases Avliere an interpleader is proper, to relieve themselves, by a summary proceeding, from the delays and expense of a formal action.’ We think this should be held to be the construction of said section 2540.” Section 2540 of the Code of 1867, was then under consideration, and is substantially the same as section 2633 of the present Code.
On the state of facts presented in the claim propounded by Coleman, the substituted defendant in the case at bar, Ave think it perfectly clear that the original defendant could not have maintained his bill of inter-pleader. The facts stated in the propounded claim of the substituted defendant, must necessarily be the facts upon AAdiicli the original defendant AATould rest his bill of interpleader. By these facts it is shown that the original defendant Avas a joint tort-feasor Avith the plaintiff in the conversion of the claimant’s property. In Iuav he aauis a wrong-doer, and Avould be met at the very threshold of a court of equity with one of its cardinal rules — “he that would come into a court of equity, must come Avith clean hands.” The complainant in a bill of interpleader must not only be a party disinterested in the subject-matter of the litigation, but must also be free from wrong, or as is commonly said, he must be an innocent stakeholder.
But it is here insisted, that after Coleman was substituted as defendant Avithout objection from the plaintiff, the plaintiff Avaived all right to demur to the claim propounded by Coleman. This contention, we think, is Avithout merit and unsupported in reason. By the pro-A'isions of this statute, when the required affidavit is made and a prayer for an order requiring the claimant on notice to come in and defend, and the money is deposited in court by the defendant, Avhich was done in this case, the party suggested as claimant may volun*620tarily appear and defend, or failing to do so, may be brought in by appropriate proceedings pointed out in the statute, and by order of the court be substituted as defendant. The statute is wholly silent as to what form of pleadings are to be liad, or what issues to be made up, after the new defendant lias been substituted. It is manifest, that when -the requisite affidavit has been made, accompanied with the proper prayer for order for the claimant to come in and defend, and the money deposited in court, and the claimant voluntarily appears to defend, a.s was the case here, the court was bound to make the order of substitution of the new, and the discharge of the old defendant. The court could not pass upon the relative rights of the plaintiff and claimant until they were in some manner before the court as parties. It is difficult to understand how or upon what ground the plaintiff could object to the order of substitution of the new defendant after the filing of the statutory affidavit and prayer for order accompanied with the deposit of the-money in court. In Johnson v. Maxey, supra, it was said by this court: “It was the duty of said substituted defendant, when he came into court as aforesaid, and for the purpose aforesaid, to have propounded his claim to the money so deposited to the court, in writing, by setting it forth with such certainty and fullness, with all necessary averments, so that the plaintiff might know in what it consisted and be enabled to plead to, or answer it, as he might be advised.” The practice here indicated, and which we approve, .was followed in the present case. The plaintiff as soon as the substituted defendant propounded his claim in wifi ting-pleaded to the same by demurring to it, and the demurrer was heard and sustained by the court, and properly so, for the reason we have herein-above stated. The substituted defendant declining to further plead, the record recites that thereupon on issue joined the cause was submitted to the jury. It does not appear from the record what the issue was. The only evidence offered was that of the plaintiff, and on his evidence as set forth in the bill of exceptions, he was entitled to the general charge which was given by the court. When the" substi*621tilted defendant declined to further., plead after the ruling on the demurrer, the court might have then rendered judgment for the plaintiff for the money which had been deposited in court by the original defendant, and this was the proper and the only judgment to be rendered, except the judgment as to costs. The money being in court, the judgment against the substituted defendant, awarding execution against him for the recovery of the money, was erroneous. This error, however, does not call for a reversal and remandment of the cause, as the judgment may he here corrected. The judgment will be here corrected ordering the money on deposit in the court to be paid over to the plaintiff, and further taxing the substituted defendant with the costs Avith execution to issue for its recovery.
The judgment as corrected avíII be affirmed.
Affirmed.