disposition of the public lands. That power cannot be defeated or obstructed by any occupation of the premises before the issue of the patent, under state legislation, in whatever form or tribunal such occupation be asserted. Wilcox v. Jackson, 13 Pet., 516, 517; Irvine v. Marshall, 20 How., 558; Fenn v. Holme, 21 id., 481; Lindsey v. Miller, 6 Pet., 672.

Judgment reversed, and the cause remanded for further proceedings pursuant to this opinion.

JUSTICES DAVIS and STRONG dissented.

$910. In general.-The statute of limitations does not run against a state. Lindley v. Miller's Lessee, 6 Pet., 666.

§ 911. Prescription does not avail against the United States. Union M. & M. Co. v. Ferris, 2 Saw., 179.

912. There can be no presumption of payment against the government, nor can laches be imputed to it. United States v. Williams, 4 McL., 567.

§ 913. State statute of limitation cannot bar the United States to a right of action under act of congress. McGlinchy v. United States, 4 Cliff., 312.

§ 914. The United States takes no better title by assignment than the assignor had; and if the claim was barred by limitation in his hands it is barred in theirs. United States v. Buford, 3 Pet., 12.

§ 915. The government is entitled to the benefit of the rule of laches against a claimant of a grant. United States v. Moore, 12 How., 223.

$916. Laches is not attributable to the United States, and delay in collecting a debt to the government does not release the sureties of the debtor. Smith v. United States, 5 Pet., 292.

$917. Laches cannot be imputed to the government. United States v. Vanzandt, 11 Wheat., 184; United States v. Kirkpatrick, 9 Wheat., 720; United States v. Little Miami, etc., R. Co., 1 Fed. R., 701; United States v. Barrowcliff, 3 Ben., 519,

§ 918. The claims of the United States are liable to be defeated on the score of laches and of their being stale. United States v. Flint, 4 Saw., 42.

§ 919. Section 4 of the act of 1839, limiting suits for penalties and forfeitures to five years, does not apply to suits on official bonds. Raymond v. United States,* 14 Blatch., 51.

§ 920. The statute of limitations does not run against the government, nor is it chargeable with laches; and on the same principle, the lapse of time affords no presumption of payment against it. United States v. Williams, 5 McL., 133.

§ 921. The statute of limitations does not bar a claim of the government unless the provision be express that it shall be a bar. United States v. Davis, 3 McL., 483.

§ 922. No right of action accruing to the United States is barred by lapse of time unless where there may be special provision by act of congress to that effect. Limitation of Suits by the United States,* 7 Op. Att'y Gen'l, 614.

§ 923. It is a decisive answer to a claim in favor of the government to say that it is based on transactions which are twenty-three years old; for although the statute of limitations cannot be pleaded against the government, the government, like anybody else. is bound by the rules of evidence and by the natural presumptions arising from the facts of the case. It is one of the rules of every civilized code that a certain length of time, generally about twenty years, shall be regarded as evidence that a claim is either unjust or satisfied, and such lapse of time proves that fact as fully as if it had been attested by credible witnesses. Claim of Reside,* 9 Op. Att'y Gen'l, 197.

§ 924. The statutes of limitation do not run against the United States. Hence, so long as land through which water flows is owned by the United States, no use or appropriation of the water flowing through such land can avail as a foundation of title by prescription, or defeat or modify the title conveyed to the grantee of the government. To gain a right to the use of the water by prescription the adverse use and appropriation must continue for the full statute period after the title to the land, against which the right is sought to be asserted, has passed from the United States. Union M. & M. Co. v. Ferris, 2 Saw., 176.

$925. Where a person remained a creditor on the books of the register of the treasury from 1781 until 1850, when his representatives demanded payment of the claim, held, that the claim was barred by the act of congress of July 9, 1798. (1 Story's Laws, 525.) Claim of Ross' Representatives,* 5 Op. Att'y Gen'l, 250.

$926. Moreover the legal presumptions arising from the lapse of so great a period of time would render it improper for the secretary of the treasury to pay claims of this character without special authority from congress. Ibid.

§ 927. The fact that a claim presented to a department of the government for payment is one of old standing is not an absolute bar to its payment. The great lapse of time furnishes strong presumptive evidence against its justice, but this presumption may be rebutted by other evidence accounting for the delay.. Accounts and Accounting Officers,* 2 Op. Att'y Gen'l, 463. § 928. State statutes of limitations do not run against the United States. An action was brought upon a judgment obtained against J. C. Ramsey and others, in 1857, by the United States, the administrator of Ramsey alone being sued. It was held that the statute of limitations of Minnesota did not run against the United States, whether the claims rest in judgment or not. United States v. Spiel,* 3 McC., 107.

§ 929. Time does not run against the United States, and public policy forbids that the negligence of the officers of the government should be held to create laches on the part of the government, except, probably, as to third persons who are strangers to the transaction as to which the negligence may occur. So held where an act of congress authorized the secretary of the treasury to pay out sums up to a certain amount to aid the city of Alexandria in constructing a canal, when the city should deposit the stocks held by it in the canal company as collateral. The sums were paid out, but the city deposited only one thousand five hundred shares, although it owned three thousand five hundred, two thousand of which she could not transfer, because they were not paid for. The city afterwards paid for the two thousand shares and subscribed for one thousand five hundred additional, but sold two thousand seven hundred and fifty, leaving seven hundred and fifty shares at its disposal, when, in 1882, the United States commenced an action against the city to compel it to deposit the two thousand shares. No demand had ever been made for them. A decree in favor of the government was given. United States v. City of Alexandria, 4 Hughes, 545 (§§ 327–29).

§ 930. Prescription.-The rules of prescription which apply between individuals do not affect the various states. So held where the state of Rhode Island brought an action against the state of Massachusetts to set aside, on the ground of mistake, an agreement fixing the boundaries between the two states, entered into in 1740, but never ratified, although acted upon. State of Rhode Island v. State of Massachusetts, 15 Pet., 233 (§§ 439–41).

It is not necessary to

A possession of thirty private property, will

$931. Presumption of a grant. It seems that the fact that the state or its agents allowed first one and then another to occupy and use lands as private property for a long time will raise a presumption that the state has granted the lands to some one. fix upon any one as the grantee, so that the title is out of the state. years under known and visible lines and boundaries, using the land as show a title out of the state. McIntyre v. Thompson,* 4 Hughes, 562. § 932. A grant from the crown may be presumed after an uninterrupted possession of sixty years, or a prescriptive possession of crown lands for forty years. Mitchell v. United States,

9 Pet., 711.

§ 932a. Twenty years' possession is not presumptive evidence of a grant. Pierson v. Elgar, 4 Cr. C. C., 454.

§ 933. Decedents' estates.- A state statute regulating the mode of proving and collecting claims against the estates of decedents does not affect the United States. United States v. Backus,* 6 McL., 443.

§ 934. State statutes of limitations cannot, of their own force, bind or bar the suits of the national government in the national courts, unless expressly so provided by act of congress. The general statute of limitations and the statute limiting actions against executors and administrators in Massachusetts cannot be pleaded in bar to an action by the United States in the federal courts. United States v. Hoar,* 2 Mason, 311.

§ 935. Marshals' bonds.— The statute of limitations of six years, contained in section 786 of the Revised Statutes, with reference to actions on marshals' bonds, does not apply to suits brought by the United States. United States v. Godbold,* 3 Woods, 550; Same v. Rand,* 4 Saw., 272.

§ 936. State nominal plaintiff merely.- The principle that the statute of limitations does not run against the state does not apply where the real plaintiff is a corporation in which the state is a stockholder. So held in an action brought by the Bank of the United States, in which the United States government was a large stockholder, to which the act of limitations was pleaded. Bank of United States v. McKenzie," 2 Marsh., 393.

IX. REMOVAL OF THE STATUTORY BAR.

1. Acknowledgment and New Promise.

SUMMARY-Conditional, §§ 937, 938; by one partner after dissolution, § 937.-Assertion of ability to pay, § 939.

§ 937. An acknowledgment to revive an original cause of action must be unqualified and unconditional, and must show a present subsisting indebtedness. Performance of the condition must be shown if the acknowledgment is conditional. After the dissolution of a firm a partner cannot, by his acknowledgment, revive a firm debt barred by the statute of limitations. So held in an action upon a partnership debt, contracted before 1813. The partnership was dissolved in 1813, and the action was commenced in 1820. Evidence was offered to prove acknowledgments of the debt made by one of the partners at various times between 1813 and 1820. Bell v. Morrison, $$ 940-47.

§ 938. If the acknowledgment be connected with circumstances which in any manner affect the claim, or if it be conditional, it may amount to a new assumpsit for which the old debt is a sufficient consideration, or if it be construed to revive the original debt, that revival is conditional, and the performance of the condition or a readiness to perform it must be shown. So held in an action of assumpsit on a promise in writing to deliver a quantity of powder. The defendant had stated to one witness that if the plaintiff had come forward and settled certain claims the defendant had against him, he would have given him his powder; and to another, he should be ready to deliver the powder whenever the plaintiff settled a suit which E. had brought against defendant on account of a patent-right and machine sold to him by plaintiff. Wetzell v. Bussard, §§ 948-49.

§ 939. An action was commenced in July, 1825, by the Bank of Columbia on a promissory note payable in 1816. It was given in evidence that in 1823, Moore, the maker, while under the influence of liquor, exclaimed to some companions in the presence of one of the bank's clerks that he was free of debt, "except one demand of $500 in the Bank of Columbia, which I can pay at any time;" also that no other note for $500, except the one sued on, stood charged to him at the time of the conversation. This was held not to be an acknowledgment sufficient to remove the bar of the statute. Moore v. Bank of Columbia, §§ 950-51. [NOTES.- See $$ 952-995.]

BELL v. MORRISON.

(1 Peters, 351-375. 1828.)

Opinion by MR. JUSTICE STORY.

STATEMENT OF FACTS.-This cause comes before us upon a writ of error to the circuit court of the district of Kentucky. The original action was brought by the plaintiffs in error against the defendants, on the 16th of August, 1820, to recover the value of certain iron castings, sold and delivered to them by the plaintiff. The defendants pleaded non assumpserunt, and non assumpserunt within five years (the latter being the time prescribed by the Kentucky statute of limitations in cases of this nature), upon which pleas the parties were at issue; and at the trial a verdict was returned by the jury for the defendants, upon which judgment passed in their favor. A bill of exceptions was taken to certain points, ruled by the circuit court at the trial, and the validity of these exceptions has constituted the ground of the argument for the reversal which has been insisted on in this court.

$940. What will entitle a deposition to be read in evidence.

The first objection urged is the exclusion of the deposition of a Mr. Mockbee, which was offered by the plaintiff as testimony in the cause. The reason assigned for the exclusion is that there was no proof, by the certificate of the magistrate or otherwise, that the deposition was reduced to writing in the presence of the magistrate. This is a point altogether dependent upon the con

struction of the act of congress of the 4th of September, 1789, under the authority of which the deposition purports to be taken. The authority to take testimony in this manner, being in derogation of the rules of the common law, has always been construed strictly, and therefore it is necessary to establish that all the requisites of the law have been complied with before such testimony is admissible. The act of congress provides "that every person deposing as aforesaid shall be carefully examined and cautioned, and sworn or affirmed to testify the whole truth, and shall subscribe the testimony by him or her given after the same shall be reduced to writing, which shall be done only by the magistrate taking the deposition, or by the deponent in his presence. And the depositions so taken shall be retained by such magistrate until he deliver the same with his own hand into the court for which they are taken, or shall, together with a certificate of the reasons as aforesaid of their being taken, and of the notice, if any was given to the adverse party, be by him, the said magistrate, sealed up and directed to such court, and remain under his seal until opened in court."

§ 941.

magistrate's certificate is evidence of facts therein stated. Without doubt the certificate of the magistrate is good evidence of the facts stated therein, so as to entitle the deposition to be read to the jury, if all the necessary facts are there sufficiently disclosed. It is not denied that the reducing of the deposition to writing in the presence of the magistrate is a fact made material by the statute, and that proof of it is a necessary preliminary to the right of introducing it at the trial. But it is supposed that sufficient may be gathered by intendment from the certificate of the magistrate to justify the presumption that it was done. The certificate is in these words: "State of Tennessee, Dickson county, ss. At Charlotte, in said county, on the 4th day of July, 1822, before me, James M. Ross, justice of the peace, and one of the judges of the county court of Dickson county, came, personally, John Mockbee, being about the age of fifty-one years, and after being carefully examined and cautioned, and sworn to testify the whole truth, did subscribe the foregoing and annexed deposition, after the same was reduced to writing, by him in his own proper hand." The certificate then proceeds to state the reason for taking the deposition, etc., in the usual form. It is remarkable that the certificate follows throughout, with great exactness of terms, every requisition in the statute, with the exception as to the deposition being reduced to writing in the presence of the magistrate, and it is scarcely presumable that this was accidentally omitted. At all events every word in the certificate may be perfectly true, and yet the deposition may not have been reduced to writing in the magistrate's presence. If this be so, then there can arise no just presumption in favor of it.

§ 942. statute.

certificate should show a compliance with the requirements of the

And we think in a case of this nature, where evidence is sought to be admitted contrary to the rules of the common law, something more than a mere presumption should exist that it was rightly taken. There ought to be direct proof that the requisitions of the statute have been fully complied with. We are therefore of opinion that the deposition was properly rejected.

The more important question in the cause is that relative to the evidence introduced to repel the plea of the statute of limitations. In the course of the trial the plaintiff read to the jury certain articles of copartnership, made between the defendants, in March, 1810, whereby the defendants entered into

ness.

a joint trade and partnership in the manufacturing of salt, at a place known by the name of the United States Saline, near the Wabash river, within the Illinois Territory, for the term of three years then next ensuing, under the style of Taylor, Wilkins & Co. He also gave evidence that large quantities of iron castings had been sold and delivered by him to the company during the term of the copartnership. He then introduced the testimony of one Patterson Baine, who stated "that some time in the year 1818 or 1819, the plaintiff, Bell, came to his house, in Lexington, and stated that he had again come up to endeavor to get the amount of his account from the defendants. He requested the witness to go with the plaintiff to Col. Morrison's (one of the defendants) on that business. The witness went. The plaintiff and Morrison had a good deal of conversation on the subject of the plaintiff's account against the Saline Company, for metal furnished, which is not recollected by the witThe witness recollects that Morrison stated that the books and papers relative to the plaintiff's claim were in the hands of Jonathan Taylor (one of the defendants), which put it out of his power to settle the account at that time, and expressed a willingness, but for that reason, to settle with the plaintiff. The plaintiff bade him good-by, and declared that that was the last time he should ever apply for a settlement of his account. The plaintiff then left the house of Morrison, and returned with the witness to his house, where he remained until after breakfast on the next day; that shortly after breakfast Morrison came to the house of the witness, and said to Bell (the plaintiff) that he was very anxious that his (the plaintiff's) account should be settled; adding, "I know we are owing you, and I am anxious it should be settled." He then mentioned to the plaintiff that he (Morrison) was getting old, and did not like to have such things hanging over him, and wished to have the business settled, and to have done with it. He then proposed to give the plaintiff $7,000, and close the business. The plaintiff refused to take it, and they parted; that no account or papers of any kind were shown or produced by Bell at the time of these conversations with Morrison; but he understood the conversations to relate to the claim for castings furnished by him to the company of Taylor, Wilkins, and others. The witness observed to the plaintiff, after Morrison's departure, that he should have taken Morrison's offer; that "a half loaf is better than no bread." The plaintiff also introduced certain letters written by Morrison and Butler (two of the defendants) to him. The first was a letter from Morrison, dated 2d of October, 1814, and it contains, among others, the following expressions: "I wish whatever is due to you should be paid; I have once more to ask you to follow the advice I am about to offer, viz. to come up here, without delay (as Col. Butler may be soon ordered off), and I cannot believe your present suit will answer any purpose," etc., etc. "It is not our wish to keep from you whatever may be your just due. We have sent for the company books, some two or three weeks since; they will come to Louisville by water; and on your and Mr. Wheatley's being there, I have no doubt but your account can be adjusted, and that more to your satisfaction than it ever can be from the result of your suit," etc. "I wish your account settled, and I have no hesitation in saying, on your coming here, it will be done." The next was a letter from Butler, dated 26th of October, 1817, in which he informs the plaintiff that, on the 20th of November, Messrs. Morrison and Wilkins will be at Hopkinsville "for the purpose of adjusting some of the affairs of the old Saline Company," etc., and desires that he "will be present, in order that a settlement may be effected, if possible, of the