the estate as above stated. From this decree of distribution

Stilwell has appealed.

419 Section 674 of the Penal Code is as follows: "A person sentenced to imprisonment in the state prison for life is thereafter deemed civilly dead."

Civil death imports a deprivation of all rights whose exercise or enjoyment depends upon some provision of positive law. In Anderson's Law Dictionary civil death is defined to be: "Extinction of civil rights." Bouvier says: "Civil death is the state of a person who, though possessing natural life, has lost all his civil rights and as to them is considered as dead." Abbott defines civil death to be: "The legal privation or extinction of a person's rights and capacities among his fellow members of society." In Estate of Nerac, 35 Cal. 392, 95 Am. Dec. 111, the court said: "If the convict be sentenced for life, he becomes civiliter mortuus, or dead in law, in respect to his estate, as if he was dead in fact."

If James had died a natural death at the time he was sentenced to imprisonment in the state prison for the term of his natural life, the correctness of the decree would be unquestioned, and, for the purpose of any right of inheritance, his civil death must have the same effect. The right of inheritance is a civil right existing only by virtue of the law, and the legislature may make the deprivation of this right a portion of the penalty to be imposed for the commission of a crime.

The provisions of sections 675 and 676 of the Penal Code, instead of impairing this construction given to section 674, strengthen it by showing that but for these provisions, in the opinion of the legislature, the civil death of the felon would extend to the cases therein named; and the enumeration of the cases wherein section 674 is inoperative authorizes the conclusion that those are the only cases in which it is not to be applied.

Avery v. Everett, 110 N. Y. 317, 6 Am. St. Rep. 368, cited by the appellant, has no application to the facts of the present case. In that case the testator died in 1869, leaving to his son, Charles, an estate in the lands in question, which the court held to be a vested remainder in fee, limited upon the life of his mother, but subject to be defeated by his dying without children. This remainder was property capable of being transferred by Charles, and vested in him at the death of his father. In 1875 Charles was convicted of murder and sentenced to imprisonment 420 in the state prison for the term of his natural life. The court was not called upon to consider whether his right of inheritance

was destroyed by the sentence, but whether the sentence operated to devest him of the property at that time owned by him, and held that the sentence did not have the effect to devest him of his interest in the land. The same rule exists in this state by virtue of section 677 of the Penal Code, which provides: "No conviction of any person for crime works any forfeiture of any property, except in cases in which a forfeiture is expressly imposed by law."

The decree is affirmed.

Garoutte, J., Van Dyke, J., McFarland, J., Temple, J., and Henshaw, J., concurred.

CIVIL DEATH AND ITS EFFECT.-A convict sentenced for life becomes civiliter mortuus, or dead in law, in respect to his estate, as if he was dead in fact. This, however, is statutory in California: See monographic note to Avery v. Everett, 6 Am. St. Rep. 381, on civil death, and the extent to which it is recognized in America. In Texas, such a convict is not civilly dead, and no one can recover property as his heir at law while he remains alive: Davis v. Laning, 85 Tex. 39, 34 Am. St. Rep. 784, and note showing that a person civilly dead is not a "decedent" within the purview of the statute, in reference to estates on which letters of administration may be granted. A life sentence of a convict does not, under the statutes of California, interfere with the disposition of his property, or the taking of it to pay his debts: Coffee v. Haynes, 124 Cal. 561, 71 Am. St. Rep. 99.

LONDON AND SAN FRANCISCO BANK, LIMITED, U

PARROTT.

[125 CALIFORNIA, 472.]

GUARANTY AND LETTER OF CREDIT-WHAT IS-LIABILITY WITHOUT NOTICE.-A written instrument, which is addressed to a bank, requesting it to give continued credit to a third person in a specified amount, which guarantees payment of such credit, to the extent specified, in certain proportions named, and which declares that the same shall be a continuing guaranty by each of the subscribers, in such proportions, until the credit given is fully paid, is both a letter of credit and an absolute guaranty, upon which the subscribers are answerable, without notice of the credit given, and without notice of the acceptance of the guaranty.

GUARANTY, ABSOLUTE-GUARANTY OF CREDITWHEN BINDING WITHOUT NOTICE.-Under a statute which provides that an absolute guaranty is binding on the guarantor without notice of acceptance, a guaranty of credit requested of a bank for a third person, and which states that the signers "do hereby severally guarantee the said credits," is binding without any notice of acceptance, for it is an absolute guaranty.

STATUTES-GENERAL AND SPECIFIC PROVISIONS— CONSTRUCTION.-It is a cardinal rule of statutory construction that specific provisions upon a particular subject control general provisions for the class to which that subject belongs. Hence, a provision in one part of a code of laws, which refers to contracts in general, that the consent of parties to a contract shall be communicated to each other, does not apply to a contract of absolute guaranty for the debt or default of a third person, where the specific provisions as to guaranty are found in another part of the same code. GUARANTY-CONTRACT OF-RULE OF CONSTRUCTION.-Although a guarantor is entitled to stand upon the strict terms of his contract, it must be construed by the same rules which are applied in the construction of other written instruments.

GUARANTY-CONTRACT OF TWO INTERPRETATIONS -CONSTRUCTION.-The language used by a guarantor must receive a fair and reasonable interpretation for the purpose of effecting the objects of the guaranty, but if it is fairly susceptible of two interpretations, either of which is within the spirit of the guaranty, he cannot dispute the right of the person to whom it is given to act upon either interpretation.

PAYMENT OF DEBT-TAKING OF NOTE-GUARANTY.— The taking of a promissory note for an existing liability does not constitute a payment of the debt, in the absence of an agreement to that effect, or evidence that such was the intention of the parties. Hence, where a bank, acting under an instrument of continuing guaranty, gives "credit" to a corporation, but takes a note from it for the amount advanced, before the limit of credit is reached, the taking of the note does not discharge the liability of the guarantors, where it was not given or accepted in payment of the sums advanced.

GUARANTY-DISCHARGE OF GUARANTORS BY TAKING NOTE. The taking of a promissory note from guarantors does not discharge them from their liability upon the guaranty unless the obligation guaranteed is thereby changed. Hence, if a bank, holding a written instrument which guarantees the credit, in any form, of a corporation, takes a promissory note from the corporation, before the limit of credit is reached, for the amount of its overdrafts, which note is payable one day after date, which is not delivered to the bank until after its date, and which is, therefore, payable immediately, and the bank gives the corporation credit on its account for such note simply for the purpose of closing the overdraft account, such note is evidence of the credit existing at the time it is given, but, as it does not give time to the debtor, it does not change the amount or character of the liability of the guarantors, and does not, therefore, discharge them.

ACCOUNTS-BALANCING IS NOT CLOSING.-An account is not closed at each time a footing is made and the balance carried. to another column.

GUARANTY-CEASING OF LIABILITY.-If a corporation, having a continued, guaranteed credit with a bank to a certain amount, overdraws its account before the limit of credit is reached, and the bank takes a note from the corporation simply for the purpose of closing the overdraft account, and gives it credit therefor against the overdrafts, a statement in an agreed case, in an action upon the guaranty, that, after the time of such closing and delivery of the note, the company continued to make deposits and to check against the same, but that no "further" credit was asked by or given to, the company, does not mean that no credit was given after that time. The word "further," so used, is equivalent to "additional," AM ST. REP., VOL. LXXIII.-5

and the statement simply means that no additional credit was asked or given. The liability of the guarantors did not, therefore, cease at that time.

PAYMENTS-APPLICATION OF-GUARANTY.-A BANK which holds the note of its customer is not required, at its maturity, or thereafter, to apply thereon moneys subsequently deposited by the customer. Hence, where persons guarantee the payment of all advances made by a bank to a corporation up to an amount specified, and the bank, after making advances, but before the limit has been reached, takes a note from the corporation for the purpose of closing up an overdraft account, the fact that the corporation subsequently makes deposits, and checks against them, does not impose any obligation upon the bank to apply the deposits to the payment of the guaranteed debt, where the guaranty is for an indefinite time, and the amount thereof has not been exceeded.

CORPORATIONS-DOUBLE LIABILITY OF SHAREHOLDERS UPON THEIR GUARANTY.-If some of the stockholders of a corporation personally guarantee the payment of advances made by a bank to the corporation, and do not mention their liability as shareholders, they are answerable, both as guarantors and as stockholders, to the amount of the corporate liability. Liability upon the guaranty does not excuse liability, in any amount, as stockholders; and, while they are not answerable for more than the corporate liability in either or both capacities, yet, where the judgment against them is less than the agreed amount of the corporate liability, it is not material in which capacity it was recovered.

LIMITATIONS OF ACTIONS-LIABILITY OF GUARANTORS, AS STOCKHOLDERS, WHEN NOT BARRED.-If some of the stockholders of a corporation personally guarantee the payment of advances made by a bank to the corporation, and, after considerable advances have been made, the corporation gives the bank a note in acknowledgment of its indebtedness at the time, which note is given before the statute of limitations has run against the liability, and, after such note is given, an action is brought on the guaranty within the period prescribed by such statute, the liability of the guarantors, as stockholders, is not barred as the giving of the note prevented the bar of the statute, and preserved the liability until the maturity of the note.

PAYMENTS-APPLICATION OF DEPOSITS BY COURT.— If a corporation receives advances from a bank during the time that it is making deposits and drawing checks against the same, but such deposits have not been applied by the parties, within the time prescribed by statute, a court may, in a controversy over their application, and without disregarding the plea of the statute of limitations, order that such deposits be applied, first, to the interest due at the time of making the several deposits, and next, to the payment of the checks earliest in time, and that the application be made as of the date of the several deposits, irrespective of the time that has elapsed between the earliest items and the commencement of the action.

PAYMENT-APPLICATION OF DEPOSITS BY AGREE MENT.-If a bank, after having made large advances to a corporation, takes a note from its customer, for the purpose of closing an overdraft account, and before the statute of limitations has run against any item of the account, it is competent for the parties at the time the note is given to agree upon the mode and extent to which previous deposits made by the company shall be applied in extinction of its liability for the advances. Hence, the making and acceptance of the note for an amount agreed upon between them

must be regarded as an agreement, or acquiescence, on the part of the company, in their application to the extinction thereby of so much of the liability theretofore incurred as was not included in the note.

PAYMENT-APPLICATION OF DEPOSITS-PRIOR APPROPRIATION TO PAYMENT OF INTEREST ON ADVANCES.If interest upon overdrafts is, according to the usual course of business, paid by a memorandum check signed by the bank itself, this is equivalent to an additional advance of an amount equal to the interest so paid, and is not an application of deposits made by the customer. Such payment does not, therefore, affect the application of deposits to the payment of unpaid interest on advances.

PAYMENT-APPLICATION OF

DEPOSITS-IDENTITY OF DATE AND AMOUNT.-It does not follow, from the fact that the amount of deposits and of checks drawn by the depositor on the same day are identical, that the deposits and checks are parts of the same transaction and independent of the general account between the customer and the bank. Hence, where there is nothing more than identity of date and amount to show that they were independent transactions, the court's application of deposits to earlier items of the general account between the bank and its customer will not be disturbed on appeal.

Robert Y. Hayne, for the appellant.

Page & Eells and Page, McCutchen & Eells, for the respond

ent.

479 HARRISON, J. The defendants in the above-entitled cause (with others) executed and delivered to the plaintiff, September 30, 1891, the following instrument:

"To the London and San Francisco Bank, Lt'd, San Francisco, California:

"You will please give credit to the Capitol Packing Company for a sum of money in United States gold coin not exceeding the amount of one hundred thousand ($100,000) dollars; and as said packing company contemplates a course of future dealing with you, you will please continue the said credit, or, if it should be reduced or satisfied by payments made by said packing company, renew the same from time to time for said amount, or any less sum, or otherwise keep the said credit permanently up to the limit as aforesaid, or any less amount.

"And these presents shall be deemed to be, and shall constitute to you, a continuing guaranty by each of us in the several proportions stated below, in reference to, and embracing, the original credit hereby authorized and all future liabilities of said packing company to you under said original credit, and under such successive transactions with you as shall either continue its liability or from time to time renew it; and such guaranty shall remain and be operative until all present or future