Woolley, J.,
delivering the opinion of the court:
This application is twofold in substance. It is an application for leave to intervene, to' be followed by a rule to interplead, the controversy having shifted from the plaintiff and defendant to the plaintiff and the person seeking leave to be made a party.
*510The remedy by interpleader was not altogether unknown at common law, but it was very narrow in its application. It was usually confined to actions of detinue, quare impedit, and writs of right of award (2 D’Anv. Abr. tit. “Enterpleader ”; 23 Cyc. 2), and, when invoked, sometimes required the presence of a new party claimant, who, if not in court upon his own application, was brought into court by appropriate process (3 Reeves, Hist. Com. L. c. 23, pp. 448-455 ; 2 Story, Eq. Jur. § 801).
[1] The practice was recognized in the early colonial and state courts, and has since grown and somewhat expanded in its application. It is based upon the theory that a person with rights to urge or protect may be without an opportunity at law to maintain or protect them unless permitted to intervene and interplead in the one matter and in the only court in which these rights are being litigated, and that without such permission the law affords no means, under the peculiar circumstances of a case, for the enforcement of a right or the prevention of a wrong. The right of a person to intervene at law in an action in which he is not a party depends largely,' if not entirely, upon the necessity for intervening.
[2] To justify the injection in an action at law of a new party by intervention, it must be shown that the new party has a relation to the subject-matter of the action and to the original parties thereto, that of necessity requires the litigating of his rights in conjunction with the litigating of the rights of those originally joined. This is recognized in the situation where a mortgagee institutes an action of scire facias on a mortgage, making as party defendants only the mortgagors, who may have lost all interest in the obligation by the alienation of the property upon which it is a lien, and omitting as party defendant, as may be done, the terre-tenant. If the terre-tenant is not a party, but has h defense to the foreclosure of the mortgage against his land, there is no way at law for him to make such a defense'to the action without being made a party thereto. If the mortgagee has not made him a party, the court will allow him to intervene and become a party, and in that way, from the very necessity of the situation, permit the terre-tenant by affidavit of defense or plea to present and have heard his defense to the action.
*511[3] In the case under consideration, the plaintiff could, and if he knew the fact, probably should, have joined as a party defendant the bailiff who levied a distress upon the property intended to be replevied, thereby putting him in a position to have adjudicated his rights to the property they both claimed. The failure of the plaintiff to properly join in the action a proper party in interest should not defeat the rights of the party not joined. There being no way at law for the bailiff to defend under his distraint, except as a party, and as the plaintiff has failed to make him a party, then from the necessity of the situation the court will make him a party by permitting him to intervene as such.