opinion, and also because it seems to me that the testimony of George A. Barton to the contents of the record book, or of the memoranda, which he swore that Kimber L. Barton kept of the moneys received for Barton Bros., was hearsay evidence, and its reception fatal error. Conceding that Kimber L. Barton was a co-conspirator with the defendants below, and that his overt acts in the execution of the conspiracy were admissible against them, the proof of those overt acts was still subject to the established rules of evidence. Whether or not he or his firm received the sums of money which George A. Barton read from that book from the defendants, or either of them, whether or not he correctly entered in that book what he or his firm received, were questions of fact which were decisive in the trial of this action. If George A. Barton had testified that Kimber L. Barton had told him that Kimber, or his firm, had received the moneys entered in that book, that testimony would have been hearsay. The mere fact that those amounts were written in the book by a person other than the witness does not change their character. Written hearsay is not more competent than oral hearsay. Before the contents of that book could become admissible evidence against the defendants, competent proof that the moneys there entered were received from the defendants, or one of them, and that Kimber L. Barton correctly wrote down in that book the amounts which he, or his firm, so received, was indispensable. Even if the concession were made, and it is not, that Kimber's statements were admissions of all the conspirators, and hence of the defendants, still the book was incompetent because there was no evidence in the case that Kimber ever said or admitted that he had correctly entered in the book, or in the memoranda, the amount of moneys which he, or his firm, had received, and George A. Barton did not testify that those moneys were correctly entered. The fact is, however, that those entries were not acts in execution of the conspiracy. The making of those entries did nothing toward the accomplishment. of the purpose of the conspiracy. This purpose either had or had not been accomplished before the entries were made, hence these entries. were not admissible, either as overt acts, or admissions of a conspirator, nor as independent testimony of verified writings. They were nothing but the unverified, and hence incompetent evidence of that which Kimber L. Barton happened to write.

The chief reason for the rule which excludes hearsay testimony is that its obedience subjects, while its disregard relieves, the parties whose statements are offered, from the cross-examination of opposing parties. The right of cross-examination is the great safeguard against fraud, false statements, and half truths resulting from statements of parts and omissions of other parts of conversations and transactions, which are frequently more misleading and dangerous than direct falsehoods. It furnishes the cardinal and most effective means to discover and disclose the whole truth in all judicial investigations, and, under the English and American systems of jurisprudence, the opportunity to exercise the right of cross-examination is a condition precedent to the reception of the direct evidence of the witness. Heath v. Waters, 40 Mich. 457, 471; Sperry v. Moore's Estate, 42 Mich. 353, 361, 4

N. W. 13. If the unsworn written statements of witnesses may be received in evidence upon the testimony of a third party that the witnesses told him they were true, then the witnesses who know the facts may make their written statements thereof, and tell one who knows them not that those statements are true, and the accused may be deprived of the privilege of being confronted by, and of all opportunity to cross-examine, the real witnesses against him, for, as in the case at bar, they may be conveniently absent and the witness who produces. their written statements may know nothing, but that they told him. they were true.

No rule of law is more salutary, or more indispensable to the security of the life, liberty, and property of the citizen, than that which prohibits the repetition of the written or oral statements of absent persons to determine issues between litigants, and commands that only after due notice, after opportunity for cross-examination of the very parties whose statements are offered, and then only under the solemnity of an oath or affirmation shall their stories be evidence. Disregard this rule, and the most sacred rights of persons and property are at the mercy of the whimsical and pernicious gossip of the reckless, the irresponsible, and the vicious. Mima Queen, etc., v. Hepburn, 7 Cranch, 290, 295, 3 L. Ed. 348; Board of Com'rs v. Keene Five Cents Sav. Bank, 47 C. C. A. 464, 470, 108 Fed. 505, 510; Resurrection Gold Min. Co. v. Fortune Gold Min. Co., 64 C. C. A. 180, 186, 188, 129 Fed. 668, 674, 676; National Masonic Acc. Ass'n, etc., v. Shryock, 20 C. C. A. 3, 7, 73 Fed. 774, 777. In the case in hand one of the most important, if not the most important, fact in issue was permitted to be proved to the jury by the unverified written statement of one who was either a stranger or a criminal and who was permitted to be absent from the trial, so that the defendants were deprived of all opportunity to cross-examine him on this crucial question, and of the right to be confronted with one of the principal witnesses against them. A conviction in this case ought never to be permitted to stand upon such evidence.

The other questions discussed in the opinion of the majority are not determinative of the case as it is now presented to this court, and I do not desire to be deemed to have expressed any opinion upon them.

(156 Fed. 915.)

DAVIDSON et ux. v. WOODWARD.

(Circuit Court of Appeals, Ninth Circuit. November 4, 1907.)

No. 1,450.

HUSBAND AND WIFE-COMMUNITY PROPERTY-WASHINGTON STATUTE.

Defendant entered into a contract with one having a preferential right to purchase tide lots from the state of Washington, and who had applied for such purchase, by which the right to purchase a portion of the lots was assigned to him, and he made a payment therefor. Subsequently, the state commissioners granted the application to purchase as to certain of the lots, but denied it as to others, and in consequence the contract was abandoned. Defendant married, and shortly afterward, the amount he had paid on the contract not having been returned, a new agreement

was made, by which he was given a quitclaim deed to certain of the lots in consideration of such payment, and acquired title thereto from the state; the payments being made in part with money of his wife and in part with community funds. Held, that under the law of the state that land acquired after marriage by a deed expressing a money consideration is presumptively community property, and that it requires clear and convincing proof to overcome the presumption, such facts were not sufficient to establish the individual ownership of defendant, nor to support a decree for the specific performance by him of a contract for the sale of one of the lots in which his wife did not join, as required by the law of the state, to make a valid contract for a sale of community property. [Ed. Note.-For cases in point, see Cent. Dig. vol. 26, Husband and Wife, §§ 913, 914.

State laws as rules of decision in federal courts, see notes to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.]

Hunt, District Judge, dissenting.

Appeal from the Circuit Court of the United States for the Northern Division of the Western District of Washington.

For opinion below, see 150 Fed. 840.

William Martin, for appellants.

H. H. Field, Blaine, Tucker & Hyland, and Hughes, McMicken, Dovell & Ramsey, for appellee.

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

GILBERT, Circuit Judge. The appeal in this case is taken from a decree ordering the specific performance of a contract to sell land, made by the appellant James D. Davidson. One of the grounds of defense to the suit was that the land was the community property of the appellants, who are husband and wife, and could not be sold without the wife's consent. The court below found that the land was the separate property of James D. Davidson. That finding is assigned as error. The land in controversy was tide land adjoining property owned by one Wm. Laack, and which he had the preferential right to purchase from the state. The appellants intermarried on January 19, 1897. On January 27, 1897, Wm. Laack made a quitclaim deed to James D. Davidson, whereby he assigned to him the right to acquire from the state certain described lots, including the tide land which is the subject of the present controversy. On February 9, 1897, the appellants made their application to purchase said land from the state and made their first payment thereon. At the time of the marriage, Annie Davidson had about $400 of her own money, and the first payment was made out of this money. That and the subsequent payments were made under an understanding and agreement between the appellants that all the property possessed by each at the time of the marriage. was to be community property. On October 6th, all the payments having been made, amounting in all to $732.73, the state of Washington conveyed to James D. Davidson the said property.

It is the general rule in the states in which community property is recognized, and the rule has been expressly affirmed in the state of Washington, that land acquired after marriage by a deed expressing a money consideration is presumptively community property, and that

it requires clear and convincing proof to overcome the presumption. Dormitzer v. German, etc., Co., 23 Wash. 132, 62 Pac. 862. It is contended that the presumption is overcome in this case, and the court below so held by reason of the fact that James D. Davidson's right was initiated and his first payment was made to Laack prior to the marriage. There is no dispute in the testimony as to the nature of the steps taken by Davidson to acquire the title, and his relation to the property before his marriage. The controversy is only as to the legal effect of the established facts. In March, 1895, Wm. Laack, claiming to have the preferential right to purchase about 24 lots of tide lands, made application to the Board of State Land Commissioners for leave to purchase the same, and soon thereafter proposed to James D. Davidson that he take some of the lots, as there were more than he (Laack) "could handle." Davidson accepted the proposition, and an agreement was executed upon which Davidson paid Laack $80. The written agreement was subsequently lost or destroyed and could not be produced in evidence. Laack, who was called as a witness for the appellee, testified that the agreement was to the effect that he (Laack) was to have the first 8 lots fronting the shore lots, and that thereafter the remaining 16 lots were to be divided equally between him and Davidson. It would appear from Laack's testimony that the agreement. was not binding upon him, for he testified:

"I could give him eight and if I wanted to, and if I didn't want to give him any I should not give him any. It was my option."

In 1896 the Board of State Land Commissioners decided adversely to Laack's application as to a considerable portion of the property involved therein, and thereafter, according to the testimony of both Laack and Davidson, the agreement which they had made was canceled, and a new agreement was made on or about January 27, 1897, when Laack executed the quitclaim deed to Davidson above referred to. The testimony is that the former agreement was not canceled by any formal act of cancellation, but was by both parties thereto considered no longer in force, for the reason that the decision of the Board of State Land Commissioners, above referred to, had rendered its performance impossible. The $80 paid by Davidson to Laack was retained by the latter, and it constituted the consideration for the quitclaim deed, although that instrument recited a consideration of $1 and other good and valuable considerations. The question arises whether these facts are sufficient in law to overcome the presumption that the land is community property.

If one marries after initiating a title, it is his separate property in all cases wherein, by the doctrine of relation, the title takes effect as of the time of the first act initiating it, as in the case of a settlement under the homestead or pre-emption laws of the United States. Harris v. Harris, 71 Cal. 314, 12 Pac. 274; Forker v. Henry, 21 Wash. 235, 57 Pac. 811; Gardner v. Burkhart, 4 Tex. Civ. App. 590, 23 S. W. 709. Property purchased by a contract before marriage but not paid. for until after marriage, is also separate property. Lawson v. Ripley, 17 La. 238; Medlenka v. Downing, 59 Tex. 32; Wade's Succession, 21 La. Ann. 343. In Medlenka v. Downing, land was purchased in

84 C.C.A.-32

1853 by one whose wife died soon after the purchase. In 1854 he married again. It was held that the payment of a portion of the purchase money soon after the second marriage would raise no presumption that the money used was the community fund of the husband and his second wife. In Wade's Succession, it was held that where an unmarried woman enters into an agreement in writing before a notary public for the purpose of purchasing real property, makes a cash payment for a portion of the price, and gives her notes for the balance, due at a future date, and she marries before the maturity of the notes, the property thus acquired will, as between the husband and wife, form a portion of her separate estate.

The case principally relied on by the appellee is Barbet v. Langlois, 5 La. Ann. 212. In that case the plaintiff and Andre Langlois intermarried in the year 1818. At the time of the marriage_Langlois owned and possessed a tract of land fronting on a bayou. During the marriage he purchased from the United States, by virtue of his right of preference as a front proprietor, the lands lying in the rear of his estate, which he was allowed to purchase under the act of 1811, giving to every person in Louisiana who owned a tract of land bordering on a river, creek, bayou, or water course the right to purchase the vacant land adjacent to and back of his tract to a depth of 40 arpents. It was held that, since the right of acquisition of the adjoining lands existed in Langlois prior to the marriage, the land became his separate property although paid for during the marriage. That doctrine was affirmed in Succession of Morgan, 12 La. Ann. 153, in which it was held that, where the front tract on a river belonged to the husband before the marriage, the double concession purchased by him after the marriage under the act of Congress of June 15, 1822, which was enacted after the marriage, became the property of the husband, and that the only right of the community was to claim. reimbursement of the sum paid therefor if the payment was made out of the community funds. The court, following Barbet v. Langlois, said:

"That the cause of the acquisition preceded the marriage is a matter which can hardly admit of any doubt."

But in the present case it cannot be said that the cause of the acquisition preceded the marriage, or that at the time of the marriage J. D. Davidson possessed any right to purchase the property in controversy, or had any contract for the acquisition of such a right or had taken any step back to which the title related. The agreement which he made with Laack in 1896, it would seem from the evidence, created no binding obligation upon the latter. But if, indeed, it were otherwise, the result would be the same, for that agreement had been abandoned by both the parties thereto before the marriage took place, and at the time of the marriage there was no agreement in existence.

Again, it is to be observed that that agreement did not describe or mention the property which is in controversy. If it had been carried into effect, it cannot be known that any of that property could have been acquired by Davidson. It is true that the consideration