delivered the opinion of the court.
The plaintiffs’ claim to be put in possession and declared' to be the legal owners of two slaves, which they allege to have been conveyed to them by a sale, ti, réméré, the defend-ants having failed to repay the price at the period fixed in1 the conveyance.
The defendants severed in their answers. The husband' denied the right of the plaintiffs as members of the firm, to maintain any action on the notarial act referred to in, and annexed to the petition, and pleaded that before the day of payment, the plaintiffs received from him a sum of money, which they ought to have applied to the extinguishment of the debt specified in the instrument now sued on.
The wife denied the consideration of the contract, pleaded payment by her husband, averred that the slaves were her property, and that the consideration of the conveyance under which they are claimed, was a debt of her husband, not resulting from any thing that accrued to her private benefit. There was judgment for the defendants, and the plaintiffs appealed.
It appears to us, that the plaintiffs have a right to sue on a contract made by one of them, in the name of their firm. It is not contended that there are other partners of the firm than the plaintiffs.
The consideration of the conveyance was a sugar mill for the plantation of the wife, part of her paraphernal estate, and a sum of money which she owed to C. Allain, and was paid by the plaintiffs.
sla^Si the con-sidemtion of which, is a sum of money ac-ii"e°'um|eto he t0 , puiated to be Su{ar°day,p!and on. fa,lure die absolute, othei-Voui .• Held, that °f die vendors pay the sum due the vendees day stipu‘ -when two <lebt?, a;'e not equally due and payable, the deb- £“ 1ShaveSUmthe fodfscharglThat which is already ámi3fm^whUh a® 1Si¿m¿d¡ate suit, prefer-duee;t0ande the t^imputípayment to that one, said.n "° UnS >SThe conveyance purport's to be a sale of two slaves, and1 the consideration is a sum of money which the defendants acknowledge they owe to the plaintiffs, and which they promised to pay in all the month of February following. It is provided that on the failure of payment at that period, the sale is to become absolute and irrevocable ; and on timely payment, null and void. Although no consideration appears r , , . to have been received by the vendors, as the vendees did not discharge them from the debt they owed, but on the contrary stipulated for the payment of it at a future period : it appears to *us there was a sale, since the vendees could not have sued for their debt before the period fixed for its payment, nor afterwards, since in case of failure of payment, the slaves were to be their own absolutely ; and they could not have the slaves and the debt. It remains to be inquired whether the proceeds of a parcel of sugar of the defendants, sold by the plaintiffs, was rightly imputed by the latter to a debt due them ... ._ by the former, on an open account; or whether, as the delend-ants contend, they should have applied it to the discharge Of the debt mentioned in the conveyance.
The sugar was sent by the defendant to the plaintiffs, on the 14th of February, without any mention of the debt, to which the proceeds were to be imputed. A few days after-wards, to a request for a receipt for the net proceeds of the sale of the sugar, with an intimation that the defendants thought that the debt mentioned in the'conveyance had thereby been discharged, the plaintiffs replied, that they had ■C , ° , , J , imputed these proceeds to a larger debt due them by the defendants on an open account. As the defendants, at the time they sent the sugar, gave no direction with regard to the imputation of the proceeds, the plaintiffs had a right to make it to the debt which the defendants had the greatest interest to discharge, id est, to that which was most onerous to them. When two debts are not equally due and payable, the debtor is presumed to have the greatest interest to discharge that which is already due and payable, and for which he is liable to an immediate suit, in preference to the other, which is not yet payable, and the payment of which he may *6delay without exposing himself to a suit. When b,oth debts are equally due and payable, the debtor is presumed to have less interest to discharge one which is a simple chirographery debt, than one for which the creditor has a privilege, mortgage or security. In the present case, had the debt men-Nu the conveyance, and that in the open account, been both exigible and suable at the time the sugar was sold, there, is no doubt that the defendants could have rightly claimed that the imputation should be made to the first,, because the creditors had security for it, to wit : the two .... slaves were tojbecome theirs in case of non-payment. It is true as this debt was payable in all the month of February, the defendants had a right to pay on the first of February, and on every other day of that month ; and, consequently, on that on which the sugar was delivered, and the plaintiffs could not have refused to receive the payment; but the defendants were under no obligation to make it. The money due was in facúltate solutionis. The defendants were at liberty to avail themselves, or not, of this faculty. The choice was theirs, and if they did not make it, the plaintiffs had no right to do it for them. Had they made the imputation to the debt mentioned in the conveyance, the defendants might have insisted that it ought to have been made on the other,- which they were bound to pay, and which was suable. The plaintiffs, therefore, had a right to make the imputation .to the open account. It follows, that the debt mentioned in the conveyance, was not paid at the period stated, nor after-wards, when they were put in mora by a formal demand, nor at any time since.
presumed'1101'to have a greater charging amort-rofrapheiydebt^ when' both are equally duo and payable, andimment'°mustPabe ingiy aooor<1'It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed ; and proceeding to give such a judgment, as in our opinion ought to have been given below, it is ordered, adjudged and decreed, that the plaintiffs do recover from the defendants the slaves Bob and Lindor, with costs in both courts.