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Randolph v. Ware. 3 C.

never did insure tobacco without orders; and that the Randolphs gave them orders to effect insurances on tobacco, whenever they thought it expedient or necessary.

Great stress is laid on the contract which, it is stated, was entered into between the Randolphs and Thomas Evans, the agent of Farrel & Jones. The contract is founded on the deposition of Philip Grymes. This deposition is certainly open to the strictures which have been made upon it by the counsel on the part of the defendant. It does not appear when, and before whom, the deposition was taken. The deposition is ex parte, for neither the defendant or his attorney had an opportunity to cross-examine the witness. If it was taken at or about the time that the bill was filed, then it is liable to the objections resulting from the frailty and uncertainty of memory, and the mis. conception or misconstruction of words used in a general conversation, after a long period of time, exceeding twenty years. Besides, the quantity of tobacco to be insured was not mentioned in the course of the conversation, nor does it appear that it was at any time afterwards communicated to the agent; and unless the quantity was ascertained, an insurance could not be effected. How this paper, purporting to be a deposition, became annexed to the bill, I have not been able to discover from the proceedings; and if it be admitted as a piece of evidence in the cause, its credit is much impaired in consequence of the observations already made.

The acts of the agent bind the principal; and supposing [ * 512 ] Evans to have been the general agent of Farrel * & Jones,

it may well be questioned, whether his undertaking to insure is obligatory upon them; as it is manifest, from the correspondence between the Randolphs and Farrel & Jones, that the latter did not insure tobacco without express orders for the purpose; that the Randolphs wrote to them to insure, when they deemed an insurance proper. The fair inference is, that if Evans engaged to have an insurance made in this instance by Farrel & Jones, it was a personal contract on his part, which bound himself and no other, and for the performance of which he was responsible in his private character. Orders for insurance were invariably transmitted by the Randolphs to Farrel & Jones, and not communicated to them through the me. dium of Evans, unless the present should be considered as an ex. ception. Under such circumstances, the Randolphs, if they relied on the promise of Evans, must look to him individually, and not through him to Farrel & Jones. By this promise, Evans bound himself, and not the firm.

The house of Farrel & Jones transmitted annually their accounts to the Randolphs; they did so for the year 1771, after the loss of the

Randolph v. Ware. 3 C.

tobacco, which it is admitted was not passed to the credit of the Randolphs. The bond given for the balance is dated the 1st January, 1772, though, from the letter of the 4th April, 1772, it was not, probably, executed till some months after its date. It was made to bear date the 1st January, 1772, that it might correspond with the accounts rendered, and carry interest from that period. Farrel & Jones annually rendered regular and stated accounts to the Randolphs of their mutual dealings in the years 1772, 1773, and 1774; and in a letter of the former to the latter, Farrel & Jones particularly requested that errors, if any occurred, should be pointed out, that they might be rectified. But the Randolphs made no objections ; they made no mention of the tobacco which was lost, nor did they ever intimate an opinion that Farrel & Jones were liable for its amount. Why this silence, this acquiescence? The period of the war we will let pass without animadversion, as no dealings or communication took place between the parties. Evans died in 1778. In 1780 Hanson was appointed the agent of Farrel & Jones. It was never suggested to Hanson that the Randolphs, * or [ * 513 ] their representatives, claimed an allowance for the tobacco; no intention was manifested to charge Farrel & Jones with it until an action was commenced on the bond, in 1793, or 1794, when for the first time a claim was set up for the tobacco. Mr. Lee has endeavored to account for this silence and acquiescence, but not in a satisfactory manner; and it is probable that the Randolphs never thought of making any demand, because they were convinced that they had no right to do so, and that they must sustain the loss themselyes, as they had neglected to order Farrel & Jones to make the insurance. It was a loss justly imputable to their own neglect or imprudence; or if not, then they intended to stand their own insurers.

Farrel & Jones expressed regret whenever they received no orders to insure; and this flowed from the nature and situation of their accounts and dealings; for as the Randolphs were indebted to the firm, in a large amount, it became the interest of Farrel & Jones that the tobacco should be insured, as it was property intended to be appropriated towards the payment of the debt due to them. The loss rendered the Randolphs the less able to pay, and increased the risk of Farrel & Jones, by diminishing their security. An insurance, therefore, of the property of the debtor, must have been beneficial and satisfactory to the creditor. But this insurance, it seems, the house of Farrel & Jones never thought themselves authorized to make, unless they received immediately from the Randolphs explicit directions for the purpose.

Winchester v. Jackson. 3 C. The charge is stale. The claim comes too late; it is brought forward after a sleep of near thirty years, during which period the original parties and their agents have disappeared and are no more. An acquiescence for such a length of time, and under such circumstances, is too stubborn and inveterate to be surmounted. The claim was put into oblivion; and there it ought to have remained. A court of equity should not interpose in a case of this kind; and, therefore, the decree pronounced by the circuit court ought to be affirmed.

CUSHING, J., concurred.

Judgment affirmed.

[*514]

* FIELD v. MILTON.

3 C. 514.

A certiorari will be awarded upon a suggestion that the citation has been served, but not

sent up with the transcript of the record.

W. Pinckney, for plaintiff in error, suggested that the citation had been served, but was not returned by the clerk below with the writ of error, and prayed a certiorari.

The Court said it was a new case.

Certiorari granted.

WINCHESTER v. Jackson and others.

3 C. 514.

Costs will be allowed upon a dismission of a writ of error, for want of jurisdiction, if the

original defendant be also defendant in error.

The writ of error was dismissed for want of jurisdiction, the parties not appearing upon the record to be citizens of different States.

MARSHALL, C. J., did not sit in the cause, having decided it in the court below.

Winchester v. Jackson. 3 C.

Campbell, for the defendants in error, prayed that the dismissal might be with costs, the original defendants being also defendants in error.

The clerk stated that the practice had heretofore been to dismiss without costs, where the dismission was for want of jurisdiction.

The Court directed it to be dismissed with costs.

4 C. 46; 2 H. 9.

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