carrier, under agreement that the latter should not be liable for loss or damage by causes beyond its control or by heat. The car was under the control of defendant for two days, and the temperature varied from 47,to 68 degrees above zero. It was at a season when cold weather was to be anticipated, and the car was selected to keep the apples at a uniform temperature. Before consignment plaintiff kept the car ventilated by keeping one or more of the side doors open; but these were so constructed that they could not be kept open in transit, and they were airtight when closed. The car was not designed to be ventilated, and though there was an ice box open at the top. it could not be kept open while in transit. It was held that there was no such negligence on the part of defendant as to make it liable for damage caused by heat and lack of ventilation. The following is from the opinion: "If the decay of the apples was by reason of any negligence on the part of the carrier, it may be presumed, as contended by the plaintiff, that such negligence occurred while the apples were in the custody of the defendant as the last carrier. Laughlin v. Railway Co., 28 Wis. 204; Lamb v. Railway Co. (Wis.), 76 N. W. Rep. 1124. In the case last cited, the well-settled rule is recognized that stipulations limiting the common-law liability of the carrier are upheld, except in so far as they attempt to exempt the carrier from the consequences of its own negligence. Id.; Abrams v. Railway Co., 87 Wis. 485, 58 N. W. Rep. 780; Loeser v. Railway Co., 94 Wis. 571, 69 N. W. Rep. 372; Leonard v. Whitcomb, 95 Wis. 648, 70 N. W. Rep. 817; Schaller v. Railway Co., 97 Wis. 31, 71 N. W. Rep. 1042. Under the shipping order in evidence, the defendant could not be held liable, except by proving some negligence on its part. We fail to find any proof of such negligence. The cars contain

ing such applies started from Vermontville, 350 miles from St. Ignace, and were received by the defendant at the latter place November 3d, and were shipped November 4th, and reached West Superior in time to notify the plaintiff of their arrival on the morning of November 6th. During the time the cars were at St. Ignace the temperature was below seventy degrees, and a part of the time below fifty degrees. It was at a season of the year when cold, instead of heat, was to be anticipated. The refrigerator cars were, manifestly, selected by the plaintiff to keep the inside of the cars at a certain or uniform temperature during transit. The plaintiff claims to have kept the cars ventilated while they were at Vermontville by keeping one or more of the side doors open. Those doors were constructed so as to open outward, and to be airtight when closed. They were the only means of communicating fresh air to the apples. Obviously, it was impracticable to open any of such doors while the cars were in transit. Besides, such doors were sealed up, and designed to be so sealed up. This must have been known to the plaintiff, as an habitual shipper. Such refrigerator cars were not ventilated

cars, nor designed to be ventilated. True, each car had an ice box, open at the top, but it seems to have been impracticable to keep that open while in transit. Besides, the plaintiff accepted the cars, loaded the apples, and signed the shipping order mentioned, and must be deemed to have done so with full knowledge of the kind, the construction, and the condition of the cars, the season of the year, and the probable time the apples would be in transit. If the plaintiff desired to have the apple department of the cars ventilated, by opening the side doors at stations, from time to time, during transit, then it should have had such stipulation inserted in the shipping order. If such had been the case, the cars probably would not have been sealed. If the apples decayed by reason of negligence, it was, manifestly, the negligence of the plaintiff. In other words, the plaintiff assumed the risk of shipping the apples in that kind of cars."

CONTRACT IN WRITING-PAROL EVIDENCE.In Violette v. Rice, 53 N. E. Rep. 144, decided by the Supreme Judicial Court of Massachusetts, it was held that evidence that at the time an actress made a written agreement with the proprietor of certain theatrical companies "to render services at any theaters" it was agreed that the word "services" meant services in a particular part in a certain play, contradicts the instrument, and is inadmissible. It was further held that by a written contract of employment of an actress, providing that she shall "conform to and abide by all the rules and regulations" adopted by the employer for government of his theatrical companies, she adopts the rules, though she does not know what they are. The court said in part: "We are of opinion that the evidence could not be received. The plaintiff accepted the defendant's rules by signing the contract, whether she knew them or not. It is not a question here whether an indorsement upon a contract, not referred to upon the face of the instrument, is part of the contract by virtue of the indorsement alone. The plaintiff expressly adopted any rules which there might be within the reasonable import of the name, even though not set out in the contract, and, if she adopted them in the dark, she was bound none the less. See Railroad Co. v. Snyder, 56 N. J. Law, 326, 28 Atl. Rep. 376. With or without the rules, the engagement to render services expressed a general employment, which could not be limited to a single part without contradiction; for, to give evidence requiring words to receive an abnormal meaning is to contradict. It is settled that the normal meaning of language in a written instrument no more can be changed by construction than it can be contradicted directly by an avowed inconsistent agreement, on the strength of the talk of the parties at the time when the instrument was signed. Black v. Batchelder, 120 Mass. 171; Flynn v. Bourneuf, 143 Mass. 277, 278, 9 N. E. Rep. 650; Power Co. v. Howard, 150 Mass. 495, 23 N. E. Rep. 317; Goode v. Riley, 153 Mass.

585, 586, 28 N. E. Rep. 228; Poole v. Plush Co., 171 Mass. 49, 52, 50 N. E. Rep. 451; Grimston v. Cunningham (1894), 1 Q. B. 125. When evidence of circumstances or local or class usage is admitted, it tends to show the ordinary meaning of the language in the mouth of a normal speaker, situated as the party using the language was situated; but to admit evidence to show the sense in which words were used by particular individuals is contrary to sound principle.' Drummond v. Attorney-General, 2 H. L. Cas. 837, 863. 'If that sort of evidence were admitted, every written document would be at the mercy of witnesses that might be called to swear anything.' Nichol v. Godts, 10 Exch. 191, 194. To similar effect, Shaw. C. J., in Brown v. Brown, 8 Metc. (Mass.) 573, 577. The case of Keller v. Webb, 125 Mass. 88, goes a good way, but was not intended, we think, to qualify the principle settled by the earlier and later Massachusetts cases, some of which we have cited. In that case, evidence of conversation was admitted to show that 'casks,' in a written contract, meant casks of a certain weight. It was assumed that the contract meant casks of some certain weight, but did not state what, and thus, that the evidence supplemented, without altering, the written words. A similar explanation applies to Stoops v. Smith, 100 Mass. 63. The other cases cited do not need particular notice."

CRIMINAL LAW-RAPE-FORCE.-The case of Payne v. State, 49 S. W. Rep. 604, decided by the Court of Criminal Appeals of Texas, presents some unusual features of the law applicable to that class of crimes. The holding was that the act of copulation of a male person with a woman, she being asleep at the time, and not consenting, is sufficient force to constitute rape, and that carnal knowledge of a woman, by force, and "without" or "against" her consent, may be had while she is asleep, though no greater force is used than is involved in the act of copulation. The court says in part: "As to the second proposition, the question is sharply presented, was it competent for the court to present or define the question of force as was here done? That is, the charge, in effect, instructed the jury that the act of copulation of a male person with a woman, she being asleep at the time, and not consenting, was sufficient force to constitute the offense of rape. Ordinarily the statutory definition of force would be sufficient, but the facts in this case, so far as the State was concerned, raised the direct issue before the jury, as to whether or not a rape could be committed on a woman while she was asleep, she not consenting to the act; and in such case it was entirely proper for the court to instruct the jury as to the required force under such circumstances, and the instructions given was in accord with the authorities on the subject. See Mooney v. State, 29 Tex. App. 257, 15 S. W. Rep. 724; Com. v. Burke, 105 Mass. 376; People v. Bartow, 1 Wheeler, Cr. Cas. 378; Walter v. People, 50

Barh. 144; Reg. v. Young, 14 Cox, Cr. Cas. 114; Rex v. Mayers, 12 Cox, Cr. Cas. 311; 1 Whart. Cr. Law, p. 524, § 561, and note. In Mooney v. State, supra, this language is used: "The second position urged by the State is that, "the woman being asleep when penetrated, rape is the result, though no greater force is used than that involved in the act." We have given this proposition thorough examination. The authorities are quite inharmonious. Apparently there is a serious conflict of opinion upon this subject, but, when carefully scrutinized, the conflict will be found, to a great extent, apparent only. Our researches lead us to these conclusions: If the statute defines rape to be carnal knowledge of a woman by force and "without her consent, then the proposition above stated is correct. On the other hand, if the statute defines rape to be the carnal knowledge of a woman by force and "against” her consent, then the proposition is not correct. Some cases hold the proposition correct whether the statute says "against" or "without."' Counsel for appellant, however, insists that this question was not before the court in Mooney's case. We have examined the decision carefully, and we cannot agree to this. We are not inclined to make the distinction between the terms without consent' and 'against consent' as made in the above case, because we believe there is really, in effect, no difference between the expressions. Rape must be by force and without consent, as is stated by our statute, which really means the same thing as 'against consent.' If the female is asleep, of course, she cannot give her express consent, but, if she is willing to the act, there is tacit consent, and there need not be express consent; so that in the final analysis the act must be against her will and consent, and the force used is only such force as may be used in the act of copulation. We quote from the case of Reg. v. Young, supra-a case very similar to this-as folJows: The evidence proved that the prosecutrix, a married woman, being partially under the influence of drink, on the 2d February, 1878, went to bed in her lodgings in the Seven Dials, with her youngest child, about 9 o'clock. Her husband, with another child, came home about midnight. About 4 o'clock in the morning, when all four were asleep, the prisoner entered the roomthe door not having been locked-got into bed, in which were the prosecutrix, her husband, and the two children, and proceeded to have connection with the prosecutrix, she being at the time asleep. When she awoke, at first, the prosecutrix thought that it was her husband; but, on hearing the prisoner speak, she looked around, and, seeing her husband by her side, she immediately flung the prisoner off her, and called out to her husband. The prisoner ran away, but before he could make his escape he was secured by a police constable. None of the parties had ever seen the prisoner before. In answer to questions put by me, the jury found that the prosecutrix did not consent before, after, or at the time of the prison

er's having connection with her, that it was against her will, and that the conduct of the prosecutrix did not lead the prisoner to the belief that she did consent. I put the last question to the jury in consequence of what fell from Denman, J., in Reg. v. Flattery (1877), 2 Q. B. Div. 410-414, 13 Cox, Cr. Cas. 388. Upon these findings I directed a verdict of guilty, but reserved the question as to whether the conviction was right; the court of criminal appeal, in Reg. v. Flattery, having expressed a desire that the case of Reg. v. Barrow (1869), L. R. 1 Cr. Cas. 156, 28 Law J. M. Cas. 20, 11 Cox, Cr. Cas. 191, should be reconsidered.' Lord Coleridge, C. J., said: We are all of opinion that the addition made by the learned baron to the statement of this case puts an end to any doubt as to the case, under the circumstances, being clearly one of rape.' It follows from these authorities that the court did not err in defining the force to be used on a woman when asleep, as was done. This was a presenta tion of the State's theory, predicated on its evidence. The court immediately instructed the jury on appellant's theory—that is, in his testimony it was insisted that he had the consent of the prosecutrix to the act of copulation; and the court, on this subject, gave the following instruction: 'You are further charged, if you believe from the evidence that the said Jessie Winn, by acts or conduct toward the defendant which was reasonably calculated to induce the defendant to believe that he had the consent of the said Jessie Winn to have carnal connection with her-caused the defendant to believe that he had the consent of the said Jessie Winn to have such intercourse with her-and, so believing, the defendant had such carnal connection, if any, with the said Jessie Winn, you will acquit him.' This instruction, given in connection with the former instruction, and immediately following it, adequately presented appellant's theory of defense, and prevented any possible confusion or misconception in regard to the preceding charge, even if it be conceded that any misconception could result therefrom."

FORGERY

BANKS AND BANKING-CHECKS NEGLIGENCE.-It is held by the Supreme Court of Maine, in Neal v. Coburn, that a bank is presumed to know the signatures of its depositors; that if a bank pay to an innocent holder for value the amount of a check purporting to be drawn upon it by one of its depositors, but the signature to which was in fact forged, the bank cannot recover back the amount from such holder, and that if such holder, on demand, repay the amount to the bank, that does not entitle him to recover the amount from a prior innocent holder for value, who had indorsed the check. The following is from the opinion: "In this country the earliest published judicial decision upon the question appears to have been made in 1802 by the Supreme Court of Pennsylvania. An innocent holder of a check for value presented it for deposit to his

credit in the bank upon which it was drawn. The bank received it, and credited the amount to the holder, and debited the same to the supposed drawer. It soon proved to be a forgery, whereupon the bank charged the amount back to the holder's account. The holder then brought an action against the bank, and recovered judgment. Levy v. Bank, 1 Bin. 27. In 1825 a case similar in principle came before the United States Supreme Court, which always decides for itself questions of general commercial law as applicable to the whole country. The Bank of the United States remitted to the Bank of Georgia papers purporting to be bank notes of the latter bank, which were received and credited to the account of the former bank. Some days afterwards the supposed notes were found to be counterfeit, and the Bank of Georgia tendered them back to the United States bank, and charged the amount back to that bank, and refused to acknowledge any indebtedness for them. The United States Bank brought an action for balance of an account stated, and for money had and received, and was held entitled to recover the amount so deposited. Bank of United States v. Bank of Georgia, 10 Wheat. 333. This decision does not appear to have been questioned in any federal court. The applicability of this decision is manifest when it is recalled that the acceptor of a bill of exchange is in the same category as the maker of a note. If one who pays what purports to be his note cannot recover the money back, no more can one who pays what purports to be a bill of exchange or check drawn upon him. "In 1820, five years earlier than the case in 10 Wheat., a similar case occurred in Massachusetts between two banks as to the counterfeit bills of one of them, which it received from the other, and paid as genuine. It was held that it could not recover back the money paid. Gloucester Bank v. Salem Bank, 17 Mass. 33. As late as 1890 the Supreme Court of Massachusetts stated the rule as follows: In the usual course of business, if a check purporting to be signed by one of its depositors is paid by a bank to one who, finding it in circulation or receiving it from the payee by indorsement, took it in good faith for value, the money cannot be recovered back on the discovery that the check is a forgery.' First Nat. Bank v. First Nat. Bank, 151 Mass. 282, 24 N. E. Rep. 44.

The

"In a New York case, in 1850, the bank upon which a draft was drawn refused payment for want of funds of the drawer, whereupon Goddard, the correspondent of the supposed drawer, being informed of the draft, but without seeing it, left his own check, for its payment, which amount was remitted to the holders of the draft. next day Goddard, on seeing the draft, found it to be forged. Held, however, that he could not recover back the amount of the holder. Goddard v. Bank, 4 N. Y. 149. In 1871 a bank in New York paid to an innocent holder a forged draft drawn upon it, and then sought to recover the money back. The court rendered judgment for the defendant as in the earlier case, using this language:

'For more than a century it has been held and decided without question that it is incumbent upon the drawee of a bill to be satisfied that the signature of the drawer of the bill is genuine,— that he is presumed to know the handwriting of his correspondent; and, if he accepts or pays a bill to which the drawer's name has been forged, he is bound by the act, and can neither repudiate the bill nor recover the money paid. * A rule so well established and so firmly rooted in the jurisprudence of the country ought not to be overruled or disregarded.' National Park Bank v. Ninth Nat. Bank, 46 N. Y. 80, 81.

*

"Other courts have also recognized the rule more or less explicitly. Commercial Bank v. National Bank, 30 Md. 11; Germania Bank v. Boutell, 60 Minn. 192, 62 N. W. Rep. 327; St. Albans v. Farmers' Bank, 10 Vt. 141; Star Ins. Co. v. State Bank, 60 N. H. 442; Deposit Bank v. Fayette Nat. Bank, 90 Ky. 22, 13 S. W. Rep. 339. "The only allusion to the rule we have found in the published opinions of this court is in Belknap v. Davis, 19 Me. 457, in 1841, where, in an action by the holder against the acceptor of a bill of exchange, it was held that 'the acceptance admits the signature of the drawer and the authority to draw.' So far as it goes, this would seem to be in the same line with the decisions above cited and quoted from, and would seem to indicate that the rule so long and firmly upheld by those decisions is in harmony with the law of commercial paper in this State.

"In some cases the courts have been led to inquire whether the condition of the holder had changed between the payment of the check and notice to him of the forgery, and to hold that, if the holder had suffered no loss by reason of the payment, he should refund the amount to the bank or drawer. The rule cited does not make any such distinction,-does not call for any inqury into the condition of the holder. To do so is to abandon the rule, and with it all certainty. It would leave every person receiving payment on a check in complete uncertainty as to whether and when it was in fact finally paid. It would be a destructive blow to the usefulness of checks as an instrumentality of trade. It is also against the reason and equity of the rule as stated by the courts recognizing it, and hence is inconsistent with the rule. Wherever the rule is upheld, the doctrine of such cases must be rejected.

"The reason usually given for the rule is that it is impracticable for the indorsee or holder of a bill of exchange or check to know or learn whether the signature of the drawer is genuine, and that the bank or other drawee has the best means of knowing or learning the fact; or, as sometimes expressed, the bank may be presumed to know the signature of its depositor, and the acceptor the signature of his business correspondent. Lord Mansfield, in Price v. Neal, supra, compared the equities. He said that the action for money had and received could not be maintained, unless it was against conscience in the defendant to retain

it, and that it was not against conscience for an innocent holder to retain money paid to him by the drawee of a bill of exchange which he had in good faith paid value for. As between parties equally innocent, there seems to be no more equity in throwing off the loss from one to the other than in leaving it where it fell. In cases like these, however, where the loss fell in the regular course of business upon the bank, which could have known and should have known the forgery, it seems positively inequitable to throw off that loss upon an innocent man who had much less opportunity of knowing. As also said by Lord Mansfield, in Price v. Neal, if negligence is to be considered, it was as much, if not more, in the drawee or bank, as in the holder. But whatever the reason or equity of the rule, and however much it may be criticised by text-writers and theorists, it has been so long established and so explicitly recognized by the courts in commercial communities that it should stand as the rule until modified by legislative action. It evidently has been found to be a workable rule, and its plainness and certainty should not be obscured by fine judicial distinctions, confusing to the lay mind.

"It has been suggested that this rule breaks against another rule of the law of commercial paper, viz. that the defendant, by indorsing the check, guarantied to every subsequent holder the genuineness of the signature of the drawer. But the bank upon which the check was drawn did not become a holder. It did not purchase the check."

*

It is said in Flynn v. Mudd,' holding the sureties discharged, that "the doctrine, that giving further time to the principal debtor, without the assent of the surety, releases him from the contract, seems to be universally admitted and acted upon. To render such a defense available, it is necessary that the contract extending the time for payment should be such as would prevent the creditor from maintaining an action on the original agreement before the expiration of the extended time. To have that effect it must be based upon a sufficient consideration, and must be for a definite period. But possessing these requirements, it must also have been entered into, between the principal debtor and the creditor, without the consent of the surety, or his subsequent ratification, to constitute a valid defense. And this defense is

1 27 Ill. 323.

based on the principle that the surety can only be held to perform the precise terms of his contract. He cannot be charged by the acts of others beyond the terms of his agreement." It is also essential that the creditor should have notice of the fact of suretyship at the time of the making of the agreement for extension. And it has been held2 that an answer by one of the defendants in an action against joint makers on a promissory note, alleging that defendant was only a surety, and that after the maturity of the note the plaintiff, without his knowledge or consent, agreed to extend the time of payment in consideration of the payment of interest in advance, is insufficient, where it does not allege that at the time of making such agreement, the plaintiff had notice that he was a surety and not a joint maker. That there must be an agreement there is no question, but there is a wide divergence of opinion as to the agreement itself. Some courts maintain3 that the payment of interest in advance of itself constitutes or implies an agreement for extension, while others insist that, although such a payment is a good consideration for an agreement to extend, there must be an actual agreement to extend, and that one cannot be implied therefrom. In Woodburn v. Carter, reversing a judgment in plaintiff's favor against the sureties, it is said that "the inference is irresistible that where a creditor receives a payment of interest in advance on his notes from the debtor, there is a contract

2 McCloskey v. Indianapolis Manufacturers' & Carp. Union, 67 Ind. 86.

3 Woodburn v. Carter, 50 Ind. 376; Hamilton v. Winterrowd, 43 Ind. 393; Starrett v. Burkhalter, 86 Ind. 439; Atkinson v. Talbot, 1 Disney (Ohio), 111; Bank of B. C. v. Jeffs, 15 Wash. 230; Preston v. Henning, 6 Bush (Ky.), 556, 562; Gardner v. Gardner, 23 S. Car. 588; Osborn v. Low, 40 Ohio St. 347, distinguishing Jones v. Brown, 11 Ohio St. 601, on the ground that the note in that case not specifying when it was payable was payable immediately, and that this amounted to a reservation of the right to sue immediately. See also what is said in New Hampshire Sav. Bank v. Colcord, 15 N. H. 119.

Agricultural Bank v. Bishop, 6 Gray, 317; Harnsbarger v. Kinney, 13 Gratt. 511; Freeman's Bank v. Rollins, 13 Me. 202, distinguishing Kennebec Bank v. Tuckerman, 5 Greenl. 130; Lime Rock Bank v. Mallett, 34 Me. 547, 42 Me. 349; Russell v. Brown, 21 Mo. App. 51; Citizens' Bank of Bowling Green v. Moorman, 38 Mo. App. 484; Nevada First Nat. Bank v. Gardner, 57 Mo. App. 268; Coster v. Mesner, 58 Mo. 549. But see First Nat. Bank of Springfield v. Leavitt, 65 Mo. 562; Schnitzler v. Fourth Nat. Bank, 1 Kan. App. 674.

5 50 Ind. 376.

to extend the time of payment during the period for which interest is paid." And in Hamilton v. Winterrowd, it is said that "when a debtor pays to his creditor interest in advance on money which he owes him, and the creditor receives it as such, in the absence of an understanding to the contrary, the implication is irresistible that the debtor is to have the use of the money during the time for which interest is paid, and the creditor shall forbear collecting during the same time. We think the law clearly implies a forbearance in such a case." But in Russell v. Brown, the court says that "while the taking of interest to a definite period in advance of the time when the note fell due will be held a good consideration to support such promise, if the promise was in fact made, it will not be of itself evidence of such a promise, because this fact of itself does not disable the creditor

from suing." And in Davis v. Graham, holding that mere reception of interest in advance, without an agreement to extend, will not discharge the sureties, the court says that "as to the implication arising from the alleged advance payment of interest, we have only to say, admitting the rule for which counsel contend, that it cannot apply when it would defeat the clear intention of the parties. If the creditor manifestly intends to hold the sureties, and it is obvious that he refused to extend the time, the simple act of the advance payment of interest will not justify the inference or implication that there was such an agreement." In Coster v. Mesner, where the payment of a certain sum of money was applied by the plaintiff to the extinguishment of accrued interest, and the balance to interest for a period in advance, it is held that such payment of advance interest does not constitute such a promise of extension of time as will prevent the holder from bringing action against the principal, and therefore does not discharge the surety. But it has been held that the execution of a renewal note, which is taken as conditional payment of the original note, and the payment of interest in advance, constitute an agreement to extend the time of payment of the original until the maturity of the renewal note, and discharge

6 43 Ind. 393.

7 21 Mo. App. 51.

8 29 Iowa, 514. 9 58 Mo. 549.