tion of the same to the exclusion of state authorities; no authority over the control of the title of real and personal property of the citizens of the state or the public funds raised therefrom by taxation (beyond raising of funds by taxation for national uses); nor has Congress any authority over the control and regulation of the social, moral and economical conditions of citizens, locally peculiar to individual states and parts thereof.

Therefore, since the scope of the treatymaking power extends no farther than the authority of acts of Congress, there is no authority vested in the treaty-making power to repeal acts of state legislatures, denying aliens the right to purchase and lease lands from citizens of the state.

The scope of authority, with which the diplomatic representatives of foreign countries are clothed, is as a rule vastly broader than that with which the diplomatic representatives and the President of the United States is vested. This is due to the limitations to the exercise of the treaty-power fixed by the limitations in the Constitution of the United States. Therefore, the diplomatic representatives and the President of the United States, in contemplating negotiations, are in duty bound to acquaint diplomatic representatives of foreign countries with these limitations when negotiations begin.

The evidence discloses that on February 21, 1913, the Bollman Bros. Piano Company (hereinafter referred to as the Bollman Company), a corporation engaged in business in the city of St. Louis, executed to the plaintiff corporation, a wholesale dealer in New York City, a note for the sum of $1,656, due June 21, 1913. It appears that these two companies had had business relations for many years prior to the time of the transactions here involved. This note was discounted by plaintiff at a bank in the city of New York, and in due course it was forwarded to a trust company in the city of St. Louis, where, on and prior to June 16, 1913, it was held for collection. On June 14, 1913, plaintiff mailed to the Bollman Company its check for $1,398.60, being the check in controversy, upon the agreement or understanding between the two companies that the Bollman Company would take up the note held at the trust company, utilizing therefore the proceeds of the check and further fùnds of its own, and execute another note to plaintiff for $1,400. This check was in the following form:

The Bollman Company was then a depositor in defendant bank; and, upon receiving this check, that company, on June 16, 1913, indorsed the same and deposited it to the company's acount with the bank, the check being a part of a deposit of $2,163.95 made by the Bollman Company on that day, consisting of $100 in cash, 29 small checks, and the check in controversy. The evidence shows that defendant credited the Bollman Company with the total amount of this deposit, against which that company was allowed to draw checks; and that thereafter the check in controversy was duly collected by defendant through the usual banking channels. On the day of that deposit checks of the Bollman Company were paid by defendant, amounting to $156.05, leaving a balance of $4,758.29 in that company's account at the close of the business day. On the next day, June 17th, the Bollman Company deposited $436.50, and defendant paid the company's checks, aggregating $2,552, leaving a balance of $2,642.79 in the account. On June 18th, the Bollman Company deposited $1,968.40, and defendant paid its checks aggregating $1,345.81, leaving a balance of $3,265.38 in the account. On June 19th the Bollman Company deposited $1,500.79, and defendant paid its checks aggregating $510, leaving a balance of $4,256.17. On June 20th no deposit was made by the Bollman Company. On that day defendant charged the account with certain checks drawn by the Bollman Company and paid by defendant, and also with the amount of two notes of $1,500 each, being notes which defendant had previously discounted for the Bollman Company, and which had been forwarded to Chicago, Ill., but which had been dishonored and returned to defendant. On that evening the balance in this account was $126.33. Shortly thereafter the account was transferred to another bank. The Bollman Company did not carry out its agreement or understanding with plaintiff in regard to effectuating a renewal of the note of $1,656, due June 21, 1913, and plaintiff was required to take it up from the bank at which plaintiff had discounted it. Soon thereafter the Bollman Company became a bankrupt.

There is testimony for plaintiff to the ef fect that, subsequent to the transactions to which we have referred above, the president of the defendant bank, in conversation with plaintiff's counsel, admitted that defendant collected the check in controversy and applied the proceeds thereof to the payment of a debt due defendant from the Bollman Company. Further testimony of the witness, however, shows that in this conversation plain

tiff's counsel was told that the check came into defendant's hands by being deposited in the Bollman Company's account.

The court, having refused certain declarations of law offered by plaintiff, gave six declarations offered by defendant. The first of these is a peremptory declaration that under the law and the evidence plaintiff cannot recover. We may say that other declarations of law given indicate that the court proceeded upon the theory that the notation upon the check, viz. "To be used in part renewal of note due 6/21," did not destroy the negotiability of the intrument, "or put any duty upon defendant to inquire concerning the same," and that defendant became a bona fide holder of the check for value.

The sixth declaration of law is as follows:

"The court declares the law to be that if plaintiff proved up a claim against the bankrupt estate of Bollman Brothers Piano Company, covering the amount here claimed, then plaintiff cannot recover."

We think it obvious that the sixth declaration of law, supra, was unwarranted under the facts of the case, as learned counsel for plaintiff here, contends. It appears that plaintiff did file a claim against the estate of the Bollman Company in bankruptcy based upon the original note, which, as said, was not taken up by that company as contemplated; but it does not appear that plaintiff ever filed a claim against the bankrupt estate covering the item evidenced by this check. Obviously the argument advanced and the authorities cited by learned counsel for respondent in this connection are here without application. Since the original note was never paid, and plaintiff was required to account therefor to its bank in New York, where the paper had been discounted, it was, of course, the basis of a valid claim against the estate of the bankrupt, wholly independent of any claim which plaintiff had, or may now have, against any one, as for a recovery of the proceeds of the check in controversy. By the immediate transaction here involved, plaintiff simply advanced a further sum of $1,398.60, for which, so far as the record discloses, plaintiff has received nothing.

It remains to be seen, however, whether the evidence warrants a recovery by plaintiff of the proceeds of this check from this defendant. This is the real question before us. If plaintiff made a prima facie case, then the trial court not only fell into error in giving this sixth declaration of law, but erred in giving the peremptory instruction or declaration. Goodyear Tire & Rubber Co. v. Ward et al., 197

Mo. App. 286, loc. cit. 292, and cases there cited, 195 S. W. 75. On the other hand, if the evidence is not such as to warrant a recovery herein by plaintiff upon any theory, than the judgment below must be affirmed.

The theory of plaintiff's learned counsel, in substance, is that by the notation upon the check, supra, the payee therein named, the Bollman Company, was invested with a limited agency or authority to use the proceeds thereof only for the specific purpose of effectuating a renewal of the note mentioned; that this notation "was notice to the defendant bank that said check was to be used for a special purpose, and of the agency and authority of Bollman Bros. Piano Company," or at least sufficed to put defendant upon inquiry as to the true facts; and that under the circumstances shown in evidence, defendant must be held to have wrongfully appropriated the proceeds of the check to its own use, whereby it became liable to plaintiff therefor as for money had and received.

It would unduly extend and incumber the opinion to discuss the various authorities cited and relied upon by plaintiff. We do not regard them as controlling or persuasive, in view of the particular facts disclosed.

We are of the opinion that the notation upon this check did not destroy its negotiability. It was a statement of the transaction which gave rise to the instrument (Rev. Stat. 1909, $9974), in that it had reference to the agree ment or understanding between the maker and the payee regarding the renewal of the original note. While it constituted a direction as to the manner in which the proceeds were to be 'applied, we think that the observance of such directions, which related to an act to be done in futuro, was a matter intrusted wholly to the payee, by plaintiff, and which charged defendant with no duty under the circumstances surrounding its acquisition of the instrument. In this connection see Jennings v. Todd, 118 Mo. 296, 24 S. W. 148, 40 Am. St. Rep. 373; Stillwell v. Craig, 58 Mo. 24; Siegel v. Bank, 131 Ill. 569, 23 N. E. 417, 7 L. R. A. 537, 19 Am. St. Rep. 51; Duckett et al v. Bank, 86 Md. 400, 38 Atl. 983, 39 L. R. A. 84, 63 Am. St. Rep. 513.

The check on its face was payable to "Bollman Bros."; and, with that company's indorsement thereon, it was accepted by defendant in the usual course of its banking business as a cash deposit. The taking of the check, so indorsed, by the defendant bank for deposit, the payee being given credit for the amount thereof,

upon which the payee was entitled to immediately draw, operated to vest title to the check in defendant and constituted defendant a purchaser for value. See Ayres v. Bank, 79 Mo. 421, 49 Am. Rep. 235; Bank v. Refrigerating Co., 236 Mo. 407, 139 S. W. 545; Kavanaugh v. Bank, 59 Mo. App. 540. And, as we view the effect of the notation upon the check, defendant became a bona fide holder, or a holder in due course, of the instrument. It is argued that defendant paid nothing for the check, but this view is not tenable under the facts shown by the undisputed evidence.

It follows that the judgment should be affirmed; and it is so ordered.

REYNOLDS, P. J., and BECKER, J., concur.

NOTE.-Reference to Another Agreement_as Affecting Negotiability of Note or Check.-The instant case rules in favor of negotiability of the check in question upon the ground that the notation in question merely spoke of an independent promise by payee to do an act in futuro, and not as intending in any way to qualify the terms of the check itself. The use of such a check, at most, then would estop the payee from setting up want of consideration of the renewal note referred to by the check.

In Klotz Throwing Co. v. Manfrs. Com'l Co., 179 Fed. 813, 103 C. C. A. 305, 30 L. R. A. (N. S.) 40, Noyes, Cir. J., discussing the negotiability vel non of a note which stated upon its face that it was "subject to terms of contract between maker and payee of October 25th, 1905, holding that it was non-negotiable, said that where a provision "constitutes merely a reference to an agreement or a statement of the consideration, it does not impair the negotibality" of a note. And so if it merely constitutes notice of the existence of the contract and not of the breach thereof, it would not affect negotiability." Then speaking of the note before the court, it was said: "But the evident purpose of the parties to this note was to go further and make it subject to and impress upon it the defenses to which the maker would be entitled under the contract." The opinion cites a number of cases in which the word "subject" to another contract is used.

In Markley v. Covey, 108 Mich. 184, 66 N. W. 493, 36 L. R. A. 117, 62 Am. St. Rep. 698, a provision in a note that it was "given in accordance with the terms of a certain contract under the same date between the same parties," did not impair negotiability, because the unconditional liability was not negatived by such a reference.

In Taylor v. Curry, 106 Mass. 36, 12 Am. Rep. 661, it was held that statement that the note was given "on policy No.. 33,386," did not affect negotiability because the reference "may be for mere convenience, or for any other reason, but it cannot be interpreted as a modification of the promise." See also Union Ins. Co. v. Greenleaf, 64 Me. 123. Where a note merely recites the origin of the transaction in which it was given, nego

tiability is not affected, the effect of the transaction not being set out. P. & B. Windmill Co. v. Honeywell, 7 Kan. App. 645, 53 Pac. 488.

In First Nat. Bank v. Michael, 96 N. C. 53, 1 S. E. 855, the note stated it was given for balance of purchase money for land "sold this day by✶✶✶ to me and for which I hold bond for title." It was said: "This reference does not imply a condition or limitation, affecting the promise to pay the sum of money specified; it simply recites the particular consideration and is intended to mark the bond as of a particular transaction between the original parties to it, for their convenience." See also Bank of Sherman v. Apperson, 4 Fed. 25.

These cases seem in full accord with those cited by the opinion in support of its ruling, and we think it cannot be doubted, that the ruling was in strict agreement with an almost overwhelming line of authority.

C.

ITEMS OF PROFESSIONAL

INTEREST.

BARON READING ON TECHNICALITIES OF THE LAW.

One of our subscribers has requested us to reprint the following quotation from the address of Baron Reading before the Association of the Bar of New York City, October 14, 1915. Baron Reading, who is now the English Ambassador to the United States, was then Lord Chief Justice of England. That part of his statement which was read with much interest by Americans, was as follows:

"Speaking for myself, I am strongly impressed day by day with the undesirability of the constant reporting of decisions which lay down no new principle, but only report the application of old principles to new facts. I think that I recognize a feeling of satisfaction which the members of the Bar would have in getting rid of their thousands of volumes of decisions so that they might base themselves on the solid principles of the law.

"This system of citing corroborating cases has been changed with us. We now strive to get at the merits; to allow no technicalities to prevent the court from perceiving the true facts and arriving at a just decision, notwithstanding all the learned counsel who appear before the Judge. We believe that is the true principle that should animate the courts of justice."

The burglar's wife was in the witness box, and the prosecuting counsel was conducting a vigorous cross-examination.

"Madame, are you the wife of this man?" "Yes."

"How did you come to contract a matrimonial alliance with such a man?"

"Well," said the witness sarcastically, "I was getting old and had to choose between a lawyer and a burglar."

The cross-examination ended there.

In an affidavit filed with the Supreme Court of Michigan a short time ago, excusing delay in perfecting an appeal, the affiant, whosename we omit, makes oath and says that he was delayed from time to time, "by a chapter of accidents," among which he names the following: "Applications of registrants for assistance with Questionnaires; suffering two falls on icy streets causing injuries that became painful and serious, impeding the work for days; then blizzards and coal-famine with wife and daughter in precarious health, compelling constant negotiations for driblets of coal to make steam heat for a large house, which failed utterly, reducing him to green wood for fuel, which proved inadequate, resulting in serious sickness of his wife, keeping her in bed for weeks and him at home, though with daily hope of resuming work on said papers, frustrated until now-in fact, privations became so imminent as to create an unnerving anxiety;" all of which is good evidence that affiant's excuse should be allowed.