upon which the quitclaim deed from Laack to Davidson was made. had been paid some time prior to the marriage, but neither that payment nor its retention by Laack up to and after the date of the marriage created any right in Davidson as to the land involved herein, or imposed any obligation upon Laack except to repay the money, and Laack testified that he would have paid it back if he had not made the new agreement. The earliest date at which, in the history. of the title, Davidson possessed any right as to the land, was January 27, 1897, the date of the quitclaim deed.

A case in point is Aken v. Jefferson, 65 Tex. 137. In that case the husband had purchased certain land before the marriage. After the marriage he compromised a suit brought against him for the land by paying half of its value. The original purchase money was his separate property. The compromise money was community property. The court ruled that if the husband acquired a good title by the first purchase or by limitation, before his marriage, all the land was his separate property; but that if he did not have title at the time of his marriage, it was all community property. In Johnson v. Johnson, 11 Cal. 200, 70 Am. Dec. 774, the husband at the time of the marriage was in possession of certain lots to which he had no title; his claim. being based upon an instrument not under seal. After the marriage he purchased the lots, paying therefor from the common funds. It was held that the land was community property. While in some of the states in which the law of community property obtains, the husband may dispose of the community property, the rule is otherwise in the state of Washington, where, although the husband has the management and control of the community property, he cannot convey or incumber it unless the wife joins with him in executing the deed or the instrument of incumbrance. 1 Hill's Ann. St. & Codes, § 1400; Holyoke v. Jackson, 3 Wash. T. 239, 3 Pac. 841.

The decree is reversed, and the cause remanded, with instructions to dismiss the bill.

HUNT, District Judge (dissenting). I am constrained to dissent, and deem it proper to give my reasons briefly.

The preference right to buy the land involved in this suit, together with other lands, was in Laack prior to March 25, 1895. This preference right, together with the right of assignment thereof, was expressly conferred by the statutes of the state of Washington. Sections 2175, 2176, Ballinger's Ann. Codes & St. It was pursuant to these statutory provisions that Laack on March 25, 1895, filed application to acquire title to abutting lands, including the particular lands affected by this litigation. Thereafter, on September 9, 1896, the Board of State Land Commissioners, referring to the application of Laack, made formal finding that Laack was entitled to purchase certain lands, including these particular lots. Within a few months thereafter, Laack orally agreed to sell to James D. Davidson a right to buy part of the lands which he was entitled to purchase, and Davidson then paid him eighty dollars as a consideration. The understanding seems to have been that Laack should have the first eight shore lots to be obtained, and then Davidson should have eight,

if they were there, and if there were any still remaining they were to select lots alternately, with a view to sharing equally. They then went to the office of Mr. Bronson, Laack's counsel, and made a writing of their agreement, whereby Laack bound himself to convey portion of the lots to Davidson. The loss of this contract is unfortunate, but that a written contract of sale existed is clearly proven. There is no failure to prove a writing of sale, but lack of proof of exactly what lots were specified in the writing. But a lack of proof of description should not defeat appellee's rights, if Davidson's rights to the lots were acquired under the written contract with Laack, and provided Davidson's rights thereafter passed to appellee. The statutes of Washington prescribe that where no application for purchase was pending, sales of shore lands should be made as school and granted lands are sold. As it is not contended, however, that Davidson bought as he would have had to buy if there had been no application to purchase the lots pending, it follows that he must tie to some application for purchase, or his whole case falls. Now, in the course of events, Laack had directed the release of rights to buy certain of the lots embraced within his original application, so that when title was to be conveyed by the state, there were not as many lots to be divided between Davidson and Laack as were applied for in the application of Laack. Laack and Davidson, however, agreed on a distribution of what there was, and on January 27, 1897, Laack quitclaimed to Davidson his interest in certain parcels applied for, including the lots in question, and assigned all his rights to purchase the same from the state. Meanwhile Davidson had married on January 19, 1897. Laack never asked for, and Davidson never offered, any new consideration for the quitclaim deed. Laack, who seems to have had a high idea of the obligations he was under by his first written agreement, says that the only change between the new and old contracts was "different lots were given to Davidson," and that this was "because Davidson told me there was nothing left." The evidence is also that Laack said to Davidson that they would take what was left; and the deed was made. Laack was not very definite in his testimony as to the circumstances under which the quitclaim deed was passed. In part of his testimony he said that he and Davidson had made a new agreement, and in another part he said that the money was paid under the old agreement. The witness was apparently confused by the many questions put to him in the endeavor to elicit from him statements which would justify the conclusion that the old agreement was canceled or abandoned. Toward the close of his examination, when asked whether it was not under the "new bargain" and "new arrangement" that Davidson purchased these lots from the state, the witness replied: "Well, I will tell you. Of course we made a new bargain, but the old bargain was there, and the money was there on the old bargain; the money was right with it, so I don't know whether it was a new bargain or old bargain." And, again, when asked if he had not acted under "the old agreement,' the witness said: "It was the same thing. I don't see what is the difference between the old and the new. It is all the same thing, anyhow, pretty near." Without quoting further from the testimony

of the witness himself, it is plain that his right to purchase was the only basis of Davidson's right, and I think that the most reasonable construction to be put upon his evidence, when considered with the record facts, is that the quitclaim deed to Davidson was made in fulfillment of the contract to convey, which was drawn by Mr. Bronson, and for which Davidson paid Laack the eighty dollars paid, which Laack had retained. If the parties had intended to abandon the old agreement, nothing would have been so natural as for Davidson to have paid additional money, or for Davidson to have waited and purchased for a new consideration from Laack, after the state had conveyed to Laack. But he held hard to the preference right of Laack by availing himself of his rights obtained in consideration of the money originally paid to Laack. I am therefore forced to the opinion that in the whole transaction Davidson dealt with Laack in reliance upon his right to purchase, initiated under the lost agreement, and that he received his quitclaim deed in the carrying out of that agreement.

Believing then that the rights of Davidson to the property are founded upon the first agreement, and that the subsequent deed by Laack to him was but the perfecting of such original rights, and was meant to be such by both parties, and it appearing that Davidson was a single man when these rights were initiated, the law regards the property as separate, and prescribes that title thereto took effect as of a time before community. I am in accord with the opinion of the court, laying down the doctrine of community property generally, that property acquired by either spouse where "the title or cause of the acquisition" precedes the marriage is separate and not community property; but I would not exclude this case from within the application of the rule.

The preferential right of Laack was valuable and legally assignable, and I cannot agree with the conclusion that there was an abandonment of the contract made by Laack with Davidson, assigning an interest in property, to be acquired under this preferential right.

As a result of what I have said, it should follow, in my judgment, that Davidson's rights should be held to have initiated before marriage, and though perfected after marriage were not such as were merged into community ownership, but were capable of being passed by him. I think, too, that the evidence shows that he offered the property for sale, received a fair market price therefor, and ought to be held to his contract.

(157 Fed. 87.)

FISH V. FIRST NAT. BANK OF SEATTLE, WASH.

(Circuit Court of Appeals, Ninth Circuit.

November 4, 1907.)

No. 1,187.

PLEADING-ANSWER-COUNTERCLAIM.

An answer construed, and, although lacking in clearness of statement, held to sufficiently plead a counterclaim as against a general demurrer. [Ed. Note. For cases in point, see Cent. Dig. vol. 39, Pleading, § 294.]

On rehearing.

For former opinion, see 150 Fed. 524, 80 C. C. A. 266.

Goodell & Edwards, Ostrander & Donohoe, J. B. Reinstein, W. P. Johnson, Pillsbury, Madison & Sutro, and Alfred Sutro, for plaintiff in error.

James Kiefer, for defendant in error.

Before GILBERT, Circuit Judge, and DE HAVEN and HUNT, District Judges.

case.

DE HAVEN, District Judge. This is the second hearing of this On January 7, 1907, the judgment of the lower court was affirmed in an opinion which is reported in 150 Fed., 524, 80 C. C. A. 266. On March 11, 1907, a rehearing was ordered, "solely for the rehearing of the case upon the questions presented by the demurrer to that portion of the answer setting up a counterclaim against Simpson for $2,654.15."

The answer is lacking in clearness and precision of statement; but upon further consideration we have reached the conclusion that as against a general demurrer it should be construed as alleging that Sol. G. Simpson became indebted to Fish & Loomis in the sum of $2,654.15 for merchandise sold to, and freight and passengers carried for, him by that firm under the contract therein referred to, and that said sum has not been paid by Simpson. These facts, if proven, would, under the rule. announced in our former opinion, entitle the defendant to set off the amount of such indebtedness against the note sued on.

Judgment reversed, with direction to overrule the demurrer to the answer. Mandate forthwith.

(154 Fed. 577.)

WARE v. UNITED STATES.

(Circuit Court of Appeals, Eighth Circuit. July 10, 1907.)

No. 2,431.

1. CRIMINAL LAW-CONSPIRACY-STATUTE OF LIMITATIONS-WHEN CONSPIRACY AND SUBSEQUENT OVERT ACTS PUNISHABLE AFTER CONSPIRACY AND FORMER OVERT ACTS BARRED-CONSCIOUS PARTICIPATION OF DEFENDANT WITHIN THREE YEARS INDISPENSABLE.

Where a conspiracy has been formed and an overt act has been done in execution of it more than three years before the filing of an indictment, a prosecution for that conspiracy and overt act is barred by the statute of limitations.

When in such a case subsequent overt acts are committed under the old conspiracy within the three years, the existence of the conspiracy and the conscious participation of the defendant therein within the three years are indispensable to the maintenance of a prosecution for the conspiracy. But if these facts are established by competent evidence such a prosecution may be sustained.1

2. SAME-EVIDENCE-PROOF OF CONSPIRACY BEFORE THE THREE YEARS COMPETENT, BUT INSUFFICIENT TO ESTABLISH IT WITHIN THE THREE YEARS.

Proof of the formation by the defendant and others, more than three years before the indictment, of such a conspiracy as that charged in the indictment and of an overt act thereunder prior to the three years, is insufficient to sustain the charge of a conspiracy within the three years. But, in connection with evidence aliunde of the existence of the conspiracy and of the defendant's conscious participation in it within the three years, it is competent evidence for the consideration of the jury in determining the issue presented by the indictment.

3. SAME OVERT ACT OF CO-CONSPIRATOR INCOMPETENT TO ESTABLISH CONTINUED EXISTENCE OF CONSPIRACY.

An overt act committed by one of the alleged co-conspirators within the three years pursuant to a conspiracy between him and the defendant, formed and followed by an overt act more than three years prior to the filing of the indictment without the defendant's consent or agreement within the three years to the continued existence and execution of the conspiracy, is incompetent to establish its existence and his participation therein within the three years.

[Ed. Note.-Admissibility, on trial of joint indictments, of acts and declarations of conspirators and codefendants after accomplishment of object, see note to Sorenson v. United States, 74 C. C. A. 472.]

4. CONSPIRACY-ISSUE OF JOINT ASSENT TO EXISTENCE AND EXECUTION OF OLD CONSPIRACY GOVERNED BY SAME RULES AS ISSUE OF FORMATION OF NEW ONE.

The same rules of law and evidence govern the trial and decision of the issue whether or not a defendant jointly with others consented or agreed to the existence of a former conspiracy within the three years and the subsequent execution of it, which control the issue whether or not the conspiracy was originally formed, where that is the crucial issue.

5. CONTRACTS-HOMESTEAD LAW-AGREEMENT TO PROCURE CITIZENS TO ENTER LANDS THEREUNDER AND GRANT USE TO ANOTHER UNTIL FINAL PROOF UNLAWFUL.

An agreement to procure qualified citizens to enter lands under the general homestead law and to grant their use to another until they should make final proof or dispose of their holdings, without the reservation of any part of this use for the residence thereon or the cultivation thereof by the entrymen, is inconsistent with the purpose and spirit and violative 1 See note at end of case.