1. The facts of this case are about these : Plaintiff in sent to defendants in error enough cotton, which they sold, *509and for an amount sufficient to pay the principal and legal interest on both the debts he owed them. We say nothing as to the counsel fees which were agreed to be paid in the contracts* If these were due and collectible, there would be a small deficit. The money in the creditors’ hands had not been appropriated to either debt, and suits had been brought on both. The defense was usury and payment. Oil the trial of the suit for one of the debts, it was competent for the jury to apply enough of the amount so received by the creditors to its payment.
2. And if there be enough in the hands of the creditors to discharge what is legally due and collectible on both debts, the defendant may show that fact, and if it so appear, he is entitled to a verdict. There can be no difficulty in this. If the creditors have the money sufficient to pay both debts, have not appropriated it to the payment of either, the law, through the court and jury, will so appropriate it that the legal rights of both parties will be protected. Had the money been applied to the payment of one of the debts, say the larger, and that left but a small amount for the one on trial, the question might have been different as to how the pleas should have been framed as to the usury that had been paid, and the charge of the court would have been more appropriate. But both debts were sued on, no credit was on either; the plaintiffs -were, so far as it appeared, claiming all, and the defendant set up that he had put cotton in their hands for which they received money enough to pay what was legally due on both; that no application of the money had been made, and as the whole question was before the court, he asked what he had a right to ask, that it should be ascertained what he did owe, and that the application of the money be made accordingly. The law will do this “in such manner as is reasonable and equitable:” Code, section 2869.
3. Under this state of facts, where there are two separate suits pending, the verdict should show how the money is appropriated by the jury on the trial of one, so that it would be a guide in determining how much remained to be applied to *510the other. If the jury find there is usury in the case tried, they should state how much they do .find to be due on that debt, and how mnch of the fund in the hands of the creditors is applied to its payment. This could be done, and it might be necessary that it be done, although there, be a verdict for the defendant. Sections 3559, 3560, 3562, of the Code, make provisions for jnst such verdicts. As the charge of the court was in conflict with what we think is the proper rule that should have been given to the jury, and as they evidently were controlled by it, the defendant below is entitled tó a new trial. <r
