ment, con HODGSON v. DEXTER. Apublic agent THIS was an action of covenant brought by Joseph of the govern- Hodgson against Samuel Dexter, late secretary at war, tracting for for not keeping in good repair, and for not delivering the use of goup in like good repair at the end of the term, certain prenot personally mises which had been leased by the plaintiff to the defendant, for the purpose of offices for the war departcontract be ment; the buildings having been destroyed by fire during under his seal. the term.. vernment, is liable,. al though the Quære, what shall be said to be the act of God; and what inevitable casualty ? *346 The lease was in these words: "This indenture, made the 14th day of August, in the year of our Lord one thousand eight hundred, between Joseph Hodgson, of the city of Washington, and territory of Columbia, of the one part, and Samuel Dexter, of the same place, secretary of war, of the other part, witnesseth, that the said Joseph Hodgson, for and in consideration of the sum of four hundred dollars, current money of the United States, to him in hand paid by the said Samuel Dexter, at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath demised, granted, and to farm let, and by these presents, doth demise, grant, and to farm let, to the said Samuel Dexter and his successors, all that the three story messuage or tenement, erected and built *on part of lot number 14. in square number 75. situate on the Pennsylvania Avenue in the city of Washington aforesaid, together with the back ground and improvements; running from the said messuage (fronting 26 feet) in parallel lines down to lot number 12. on said square, being the premises next adjoining the messuage or tenement now in the occupation of Mr. Jonathan Jackson, with the improvements and appurtenances thereto belonging, or appertaining, to have and to hold the said demised premises unto him, the said Samuel Dexter and his successors, from the day of the date hereof, for and during, and unto the full end and term of eight calendar months from thence next ensuing and fully to be complete and ended. And the said Joseph Hodgson for himself, his heirs, executors, administrators and assigns, doth hereby covenant, promise and agree to and with the said Samuel Dexter and his successors, that he, the said Samuel Dexter and his successors, shall and may peaceably and quietly have, hold, use, occupy, possess and enjoy the above demised premises for and during the term granted thereof, without the let, suit, trouble, molestation or eviction of him the said Joseph Hodgson, or his heirs or assigns, or of any other person or persons whatsoever lawfully claiming, or to claim by, from, under, or in trust for him or them. And the said Samuel Dexter for himself and his successors, doth hereby covenant, promise and agree to and with the said Joseph Hodgson, his heirs and assigns, that he the said Samuel Dexter and his successors, shall and will at all times during the said term, keep, or cause to be kept, in good and sufficient repair, the said demised premises, inevitable casualties and ordinary decay excepted; and the same, so well and sufficiently kept in repair, shall and will at the end of the said term, yield and surrender up to him the said Joseph Hodgson, his heirs and assigns. In witness whereof, the said parties have hereunto interchangeably set their hands and seals, the day and year first above written. Hodgson V. Dexter. "SAMUEL DEXTER, Seal. "Signed, sealed and delivered in the presence of "John Goulding. "S. Lewis, jun." *The declaration contained two counts. The first alleged the breach thus: "but hath broken the same in this, to wit, that during the said term of eight calendar months, he did not keep, or cause to be kept, the said demised premises in good and sufficient repair, inevitable casualties and ordinary decay excepted; and that he hath not, at the end of the said term, yielded and surrendered up to the plaintiff the same, so well and sufficiently kept in repair." The second count alleged that the defendant hath not observed and kept his covenant aforesaid, in this, to wit, "that he did not keep, or cause to be kept, the said demised premises in good and sufficient repair,, inevitable casualties and ordinary decay excepted, but that the same, by an evitable casualty, to wit, by fire, were destroyed, consumed and burnt, during the said term of eight calendar months, to wit, on or about the eighth day of November, 1800, and that the said fire, and evitable casualty, was *347 Dexter. Hodgson occasioned and took place from negligence, and from the act or acts of one or more evil disposed persons.' "And after the said fire, and after the expiration of the said term, the said defendant did not so yield and surrender up the said premises according to the tenor and effect of his said covenant." To the plaintiff's damage 10,000 dollars. *348 The defendant, after oyer, pleaded in bar, 1st. "That before the expiration of the said term of eight calendar months in the said writing mentioned, viz. on the 8th of November, 1800, the said demised premises, against the will, and without the negligence, or other default of him the said Dexter, were burned and consumed by fire happening from some cause to the said Dexter then and yet wholly unknown. And the said Dexter further saith, that saving and excepting only the damage occasioned by the same burning and consuming, he the said Dexter hath, at all times, during the sid term of eight calendar months, kept, and caused to be kept, in good and sufficient repair the said demised premises; and that he hath, at the end of the said term, yielded and surrendered up to the plaintiff the said demised premises, so well and sufficiently kept in repair, saving and excepting only the damage occa sioned by the burning and consuming aforesaid; and this the said Dexter is ready to verify," &c. *To this plea there was a general demurrer, and joinder. To the second, third, and fifth pleas, there were issues in fact. The fourth plea was as follows: "that on the 15th of May, 1800, the President of the United States, for the time then being, in pursuance of authority given to him by law, did order and direct the vari ous offices belonging to the several executive departments of the United States, of which the department of war then was, and yet is, one, to be removed to the city of Washington on the first day of June then next ensuing; and that in obedience to the same order and direction, the various offices of the department of war aforesaid were removed to the said city of Washington on the said first day of June, and that thereby it became proper and necessary, that a suitable building should be hired, in which the said offices of the said department of war might be holden and kept, and for this purpose, and for no other purpose whatever, the building, mentioned in the indenture aforesaid, was, by the said indenture, leased to the said Dexter; and that, at the time of executing the writing aforesaid, he was secretary of the department of war, and in that capacity did make and execute the same, and that before the expiration of the said term of eight calendar months, viz. on the 1st day of January, 1801, he, the said Dexter, at Washington aforesaid, resigned the office of secretary of the department of war, and from and after that time ceased to hold the same office, and until this time he hath never holden the same; and further, that on the 5th day of March, in the year last mentioned, Henry Dearborn, Esq. was there duly appointed and commissioned as secretary of the department of war, and then and there accepted of the same office, and hath ever since held the same; and he, the said Dearborn, now is, and ever since his acceptance of the said office of secretary of war as aforesaid, hath been, the lawful successor of him, the said Dexter, in the said office; and this the said Dexter is ready to verify," &c. To which plea the plaintiff replied, "protesting that the said Dexter did not, in his capacity of secretary of war, sign, seal, execute and deliver the indenture of lease aforesaid exhibited, yet, by way of replication, he *saith, that although the said Dexter ceased to be secretary of war on the 1st day of January, 1801, and that on the 5th day of March, in the same year, a certain Henry Dearborn became his successor, duly appointed secretary of the department of war, and still remains such, yet that the house and premises, in the lease aforesaid mentioned, were burnt down and consumed by fire arising from within the same, from the negligence or default, not of the said Dexter, but of some person unknown, during the term aforesaid, viz. on the 8th of November, 1800, while the said Dexter was secretary of war, and whilst he had possession of the said premises, and before the appointment of the said Dearborn; and that neither the said Dexter, nor any other person, hath, during the continuance of the said lease, or at any time, built up and repaired the said premises; and this the said Hodg son is ready to verify," &c. Hodgson V. Dexter. * 349 Hodgson To this replication there was a general demurrer and V. Dexter. *350 joinder. The 6th plea was, "that on the 15th day of May, 1800, the President of the United States, for the time then being, in pursuance of authority given to him by law," ordered the executive offices to be removed to Washington, &c. as stated in the fourth plea," and that it became proper and necessary that a suitable building should be hired in which the several offices of the department of war aforesaid might be holden and kept, and that for these purposes, and for no other purpose whatever," the buildings, &c. "were by the said indenture leased to the said Dexter by the said Hodgson; and that at the time when the said Dexter executed the indenture aforesaid, he was secretary of the said department of war; and this he is ready to verify," &c. To this there was a general demurrer and joinder. Upon these demurrers the judgment below was against the plaintiff, who thereupon sued out the present writ of error. Martin, attorney-general of Maryland, and Key, for plaintiff in error. *Dexter, and Mason, attorney of United States for the district of Columbia, for defendant. Key made three points. 1st. That the defendant is individually and personally liable and bound to the performance of the covenant in the indenture contained, by him executed, and on which the suit is brought. 2d. That the defendant's first plea is bad in law, is argumentative, and does not put in issue matters competent to bar the plaintiff's action. 3d. That the defendant's fourth plea is bad in substance, is no bar, and wants form. 1st. The sixth plea and demurrer are calculated to bring into view the question whether the defendant has bound himself personally to the performance of the Covenant. Although a public agent is not generally liable for contracts made by him in that capacity; still he is ca |