delivered the opinion of the court.
Terrell, the original plaintiff in this case, claimed to be the legal owner, - and entitled to recover the amount of a promissory note 'executed by Babcock, Gardiner & Co., payable to the order of P. S. Newton & Co., and by the latter endorsed, for the sum of twelve thousand dollars. The note was made payable at a future day, with interest at six per cent, per • annum, until paid. It was deposited in the *25Canal Bank, for safe keeping and for collection. The plaintiff had it sequestered by the sheriff, and held subject to the final decision of his suit.
In an action ñote,PTvSch°w ?laimed. k>r au intervening partjr, and when fenoe or offset set up, so that the demand and matter in contestation 4s not liquidated, the court cannot, on a rule to show cause, require the defendant to pay the amount of the note sued on into court. When the creditor and debtor are at issue on tlie amount of a demand or the validity of a claim, either party is entitled to a trial by jury, or without one if they choose 5 and no other creditor has a right to interfere, and require the sum in contest to be paid into.court, before final judgment.The defendants, .Babcock, Gardiner & Co., pleaded an exception, that the suit was premature, being instituted before the maturity of the note.
Before this exception was acted on, or any further proceedings were had in the case, Taylor intervened. He took a rule on Babcock, Gardiner & Co., to show cause why they should not pay the amount of their note into court, to abide its ultimate decision. The defendants showed for cause, the pendency of Terrell’s suit against them; that they had a good defence against this action on the merits, and a demand in compensation, which would extinguish a considerable portion of the original debt; and they further averred, they could not be proceeded against in this summary way, but were entitled to a trial on the merits, before any J 3 3 J recovery could be had.
The rule was made absolute, and from the decision of the judge thereon, the defendants appealed.
The case is placed before this court on the merits. The dismissal of the appeal was not asked for, nor any motion made to effect this object, on the ground that an order to compel a party to pay money into'court, does not work the gravamen irreparabile, which only authorises an appeal from an interlocutory decree.
On the merits, this court is of opinion, that in a case like this, when the demand and matter in contestation is not liquidated, it does not authorise the court to make an order requiring the defendant to bring the money into court. In a suit when the creditor and debtor are at issue on the amount of a demand, or the validity of a claim, either party is entitled to, and has the right to demand a trial in the ordinary way, and even to a trial by jury, if he requires it. No other creditor has a right to interfere when two parties are litigating a claim and matter in contestation between them, so as to compel a settlement in a summary way, and bring the money into court. The effect of the rule made absolute, as in tbis *26case, would deprive the debtor of.his right to a trial by jury, an(j CUj_ 0pf aj[ jjjg defence to the action. He should be heard, and judgment pronounced before payment is required.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, making the rule absolute, be annulled, avoided and reversed; and it is further ordered, that the rule be discharged with costs in both courts.