charged by a third person against the will of the creditor, when it is the interest of the latter that it be fulfilled by the debtor himself.

ART. 2137. [2133.]-But where the act to be done may as well be performed by a third person, who offers to do it, as by the obligor, then it may be discharged by this third person, or the creditor may be put in default by his offer to perform it, always under the condition that some advantage may result to the debtor, or that the offer be made at his request.

ART. 2138. [2134.]-If the debtor give a thing in payment of his obligation, which he has no right to deliver, it does not discharge his obligation, and the owner of the thing given may reclaim it in the hands of the creditor, unless the obligation has been discharged by the payment of money, or the delivery of some of those things which are consumed in the use, and the creditor has used them; in which cases neither the money nor the things consumed can be reclaimed, and the payment will be good. C. C. 2139 (2135); C. N. 1238; 10 R. 481; 12 A. 733.

ART. 2139. [2135.]-If money, or other stolen property, be given in payment, the payment is not good, and the owner may recover the amount paid.

C. C. 2139 (2135); 12 A. 562, 733.

ART. 2140. [2136.]-The payment must be made to the creditor, or to some person having a power from him to receive it, or who is authorized by a court, or by law, to receive it for him.

Payment made to a person not having power to receive it for the creditor, is valid, if the creditor has ratified it, or has profited by it.

C. N. 1239; 11 R. 270; 12 A. 122; 14 A. 49, 223, 327, 456.

ART. 2141. [2137.]-If the power be revoked, either expressly or by the death of the creditor, payment to the bearer of the power will discharge the debtor, provided he were ignorant of the revocation.

ART. 2142. [2138.]-A power to receive payment is revoked, as well by such change in the state of the creditor as renders him incapable himself of legally receiving, as by his death or express revocation; if he should become interdicted, or (if a woman) she should be married, the powers, given before these changes took place, are void.

ART. 2143. [2139.]-A payment made to an attorney at law, employed to sue for the payment, will discharge the debtor, although the attorney be not specially empowered to receive the

debt.

C. C. 2146 (2142); C. P. 766; 2 N. S. 292 4 N. S. 145; 7 N. S. 34; 8 N. S. 234; 18 L. 430; 8 A. 442.

ART. 2144. [2140.]-If the authority of him who gave the power ceases, the power is revoked. Thus a power given by a

curator, an executor or a tutor, is no longer valid, after he ceases to exercise his trust.

ART. 2145. [2141.]-Payments in general can legally be made only to the creditor, or some one empowered by him. The debtor, however, is discharged by a payment made in good faith to one who is really not the creditor nor empowered by him, in the following cases:

1. When the debt is due on an instrument in writing, payable to the bearer, or payable to order, and indorsed, or if not payable to the bearer, if it be assigned in blank, or to bearer, and the payment is made to one in possession of the original evidence of the debt.

2. When the person to whom the payment has been made was at the time in possession of the evidence of the debt, under an order of a competent court, as syndic or trustee of creditors, as curator, executor, heir, or by virtue of any office or other trust, that apparently gives him the power to receive the payment.

3. When the debt accrues for rents or other incidents of the administration of immovable property, or for the sale or expenses relative to movable property, of which the person is in possession by virtue of any of the titles mentioned in the last preceding rule, or where he has been in the uninterrupted possession of such immovable property for more than one year under any other title.

7 N. S. 258; 4 L. 383; 17 L. 236; 19 A. 526; 20 A. 24; 21 A. 665.

ART. 2146. [2142.]-A special power to sell includes a power to receive the price, unless the contrary appear from the power, or unless the power be only to sell on a credit, in which case the attorney has no right to receive the price.

C. C. 2143 (2139).

ART. 2147. [2143.]-Payment made to the creditor is not valid, if he is one of those whom the law has placed under an incapacity to receive it, unless the debtor prove that the payment was applied to some object of utility for the creditor; it is not sufficient if it was applied merely to contribute to his pleasure.

C. N. 1241.

ART. 2148. [2144.]-But if the incapacity to receive the payment arose from the privation of civil rights by the effect of a sentence, then the payment is not good, although the payment were applied to the utility of the creditor.

17 L. 236.

ART. 2149. [2145.]-Payment made by a debtor to his creditor, to the prejudice of a seizure or an attachment, is not valid with regard to the creditors seizing or attaching; these may, according to their claims, oblige him to pay anew, and he has in that case alone recourse against the creditor.

C. N. 1242; 6 A. 445.

ART. 2150. [2146.]-The creditor can not be constrained to receive any other thing than that which is due, although the value of the thing tendered be equal, or even greater.

C. N. 1243; 12 A. 733.

ART. 2151. [2147.]—But if the thing agreed to be delivered be a specific object, and it be destroyed before the time agreed for its delivery, the debtor may be forced to give, and the creditor to receive the value of this thing in money.

24 A. 505.

ART. 2152. [2148.]-In the case provided for in the last preceding article, and in all other cases where the value of the thing to be delivered, enters into the measure of damages, its price, or that sum for which others of the like quality could have been purchased at the time agreed on for the delivery, is to be the rule for calculating the value; or, if no time was stipulated, then the price, at the time of the demand, must be referred to.

ART. 2153. [2149.]-The debtor can not oblige the creditor to receive in part the payment of a debt, even divisible.

C. C. 2111 (2107), 2642 (2612), 2654 (2624); 5 N. S. 194; 7 N. S. 519; 8 L. 536; 3 R. 432; 10 R. 25.

ART. 2154. [2150.]-But if the sum due consists of several different debts, or of rents falling due at different times, the debtor may force the creditor to receive the payment of one of. the debts, or of a single term of the rent; but a creditor is not obliged to receive the rent of a later term, when there is a former due.

ART. 2155. [2151.]-The debtor of a certain and determinate matter is discharged by the delivery of the thing in the state in which it is in at the time of delivery, provided that, previously to the deterioration, he was not in default.

C. N. 1245.

ART. 2156. [2152.]-If the debt be of a thing which is determined only by its species, the debtor, in order to his discharge, is not bound to deliver it of the best kind, but he can not tender it of the worst.

C. N. 1246; 13 A. 229.

ART. 2157. [2153.]-The payment must be made in the place specified in the agreement. If the place be not thus specified, the payment, in case of a certain and determinate substance, must be made in the place where was, at the time of the agreement, the thing which is the object of it.

These two cases excepted, the payment must be made at the dwelling of the debtor.

C. N. 1247; 3 L. 97.

ART. 2158. [2154.]—The expenses attending the payment are at the charge of the debtor.

C. N. 1248.

§ II.

OF PAYMENT WITH SUBROGATION.

ART. 2159. [2155.]-Subrogation to the right of a creditor in favor of a third person who pays him, is either conventional or legal.

C. N. 1249.

ART. 2160. [2156.]—The subrogation is conventional :

1. When the creditor, receiving his payment from a third person, subrogates him in his rights, actions, privileges, and mortgages against the debtor; this subrogation must be expressed and made at the same time as the payment.

2. When the debtor borrows a sum for the purpose of paying his debts, and intending to subrogate the lender in the rights of the creditor. To make this subrogation valid, it is necessary that the act of borrowing and the receipt be executed in presence of a notary and two witnesses; that, in the act of borrowing, it be declared that the sum was borrowed to make the payment, and that in the receipt it be declared that the payment has been made with the money furnished for that purpose by the new creditor. That subrogation takes place independently of the will of the

creditor.

C. C. 1434 (1383); C. N. 1249, 1250; 11 L. 284; 13 L. 290, 380; 15 L. 385; 17 L. 161; 19 L. 235; 9 R. 405, 414; 11 R. 270, 346; 2 A. 480; 10 A. 723; 11 A. 295; 13 A. 9, 52; 15 A. 400; 18 A. 42; 19 A. 468; 23 A. 84; 24 A. 471, 502; 25 A. 438.

ART. 2161. [2157.]—Subrogation takes place of right:

1. For the benefit of him who, being himself a creditor, pays another creditor, whose claim is preferable to his by reason of his privileges or mortgages.

2. For the benefit of the purchaser of any immovable property, who employs the price of his purchase in paying the creditors, to whom this property was mortgaged.

3. For the benefit of him who, being bound with others, or for others, for the payment of the debt, had an interest in discharging it.

4. For the benefit of the beneficiary heir, who has paid with his own funds the debts of the succession.

C. C. 1435 (1385), 2077 (2072), 2608 (2586), 8052 (3021), 3053 (3022), 3058 (3027), 3061 (3030), 3110 (3373); C. N. 1251; 3 L 479; 11 L. 52; 15 L. 214, 351, 389; 17 L. 161; 6 R 328; 2 A. 480; 3 A. 66; 5 A. 312; 7 A. 34; 9 A. 247, 248; 11 A. 708; 12 A. 43; 13 A. 52, 317; 14 A. 587, 663, 764; 15 A. 381, 400, 457, 460, 583, 584, 594, 705; 16 A. 108, 132, 292; 17 A. 204, 224; 18 A. 17, 42, 705; 19 A. 137; 20 A. 199, 294, 359, 360; 21 A. 746; D. Sec. 277, 3723. Acts 1855, March 15.

ART. 2162. [2158.]-The subrogation established by the preceding articles, takes place as well against the sureties, as against the debtors. It can not injure the creditor, since, if he has been paid but in part, he may exercise his right for what remains due,

in preference to him from whom he has received only a partial payment.

C. C. 3058 (3027); C. N. 1252; 15 A. 705; 16 A. 107, 108; 20 A. 96; 24 A. 500.

§ III.

OF THE IMPUTATION OF PAYMENTS.

ART. 2163. [2159.]-The debtor of several debts has a right to declare, when he makes a payment, what debt he means to discharge.

C. N. 1253; 9 A. 455; 10 A. 130.

ART. 2164. [2160.]-The debtor of a debt, which bears interest or produces rents, can not, without the consent of the creditor, impute to the reduction of the capital any payment he may make, when there is interest or rent due.

Every payment which does not extinguish both the principal and the interest, must be imputed first to the payment of the interest.

(Am'd.) C. N. 1254; 10 R. 51; 2 A. 363, 520; 9 A. 455; 16 A. 372, 375; 20 A. 569; 21 A. 768.

ART. 2165. [2161.]-When the debtor of several debts has accepted a receipt, by which the creditor has imputed what he has received to one of the debts specially, the debtor can no longer require the imputation to be made to a different debt, unless there have been fraud or surprise on the part of the creditor.

C. N. 1255; 7 N. S. 229; 5 A. 569; 9 A. 455; 10 A. 130; 15 A. 460, 526; 18 A. 544; 23 A. 216; 24 A. 156.

ART. 2166. [2162.]-When the receipt bears no imputation, the payment must be imputed to the debt, which the debtor had at the time most interest in discharging, of those that are equally due; otherwise to the debt which has fallen due, though less burdensome than those which are not yet payable.

If the debts be of a like nature, the imputation is made to the debt which has been longest due; if all things are equal, it is made proportionally.

C C. 2214 (2211); C. N. 1256; 10 L. 232, 352; 12 L. 1; 2 A. 363; 3 A. 351 ; 5 A. 569; 9 A. 455, 458; 15 A. 59, 174, 457, 526; 16 A. 292, 375; 17 A. 323; 20 A. 569; 21 A. 768; 24 A. 471.

§ IV.

OF TENDERS OF PAYMENT AND CONSIGNMENT.

ART. 2167. [2163.]-When the creditor refuses to receive his payment, the debtor may make him a real tender; and on the