Lindo v. Gardner. 1 C.

on the policy, and the declaration shows that the policy is a specialty.

The court seemed to be of opinion that an action of covenant would lie upon it against the company in their corporate name.

16 P. 327.

* ABERCROMBIE V. DUPUIS and another.

1 C. 343.

In this case there was no averment of citizenship of the parties, but only of their residence.

THE COURT said the question had been decided, after full argument, in the case of Bingham v. Cabot, 3 Dall. 383, and they did not think proper to overrule that case.

The CHIEF JUSTICE said, he did not know how his opinion might be if the question were a new one.

8 P. 112; 16 H. 314.

LINDO v. Gardner.

1 C. 344.

THIS was a writ of error to the circuit court for the District of Columbia. The action was debt, on a promissory note.

*

[ * 345 ] Peacock, for the plaintiff in error, was about to produce authorities when he was stopped by Chase, J., who said, that an action of debt will not lie in Maryland upon a promissory

note.

No opposition being made on the part of the defendant in error, judgment was afterwards reversed without argument.

Hodgson v. Dexter. 1 C.

HODGSON V. Dexter.

J C. 345.

A lease to S. D., secretary of war, and his successors, containing covenants for himself and his successors, being a contract which he had authority to make in behalf of the government, does not bind S. D. personally.

THIS was a writ of error to the circuit court for the District of Columbia. It was an action of covenant against Samuel Dexter, lately secretary at war, founded on covenants in a lease, to keep in repair and deliver up in good order a certain building hired for the use of that department of the government. The building had been destroyed by fire during the term. Several questions were raised on the pleadings, but as the opinion of the court rested on the contract, only that is material. 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, (here follows a description,) *to have and to [* 346 ] 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, loth hereby covenant, promise and agree to and with the said Joseph

Hodgson v. Dexter. 1 C.

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 yearfirst above written.

"SAMUEL DEXTER, ]Seal.] "JOSEPH HODGSON, [Seal.]

"Signed, sealed, and delivered in the presence of

[ * 363 ]

court.

"JOHN GOULDING.

"S. LEWIS, JUN."

The CHIEF JUSTICE, after stating the terms of the lease, and the pleadings, delivered the unanimous opinion of the

The plaintiff in error has made two points.

1st. That under this contract, the defendant was bound in his private capacity.

2dly. That the matter pleaded in his plea, did not show the casualty, by which the buildings were destroyed, to have been inevitable. This court give no opinion on the second point, being unanimous in favor of the defendant on the first.

It appears, from the pleadings, that congress had passed a law authorizing and requiring the president to cause the public offices to be removed from Philadelphia to Washington; in pursuance of which law, instructions, by the president, were given, and the offices belonging to the department of war were removed; that it became necessary to provide a war office, and that for this purpose, and no other, the agreement was entered into by the defendant, who was then at the head of this department. During the lease, the building was consumed by fire.

It is too clear to be controverted, that where a public agent acts in the line of his duty and by legal authority, his contracts made on account of the government, are public and not personal.

They enure to the benefit of, and are obligatory on, the govern ment, not the officer.

A contrary doctrine would be productive of the most injurious consequences to the public, as well as to individuals. The government is incapable of acting otherwise than by its agents, [* 364] and no prudent man would consent to become a public

Hodgson v. Dexter. 1 C.

agent, if he should be made personally responsible for contracts on the public account. This subject was very fully discussed in the case of Macbeath v. Haldimand, cited from 1 Term Reports, 172, and this court considers the principles laid down in that case as consonant to policy, justice, and law.

The plaintiff has not controverted the general principle, but has insisted that in this case, the defendant has, by the terms of his contract, bound himself personally.

It is admitted that the house was taken on account of the public, in pursuance of the proper authority; and that the contract was made by the person at the head of the department, for the use of which it was taken; nor is there any allegation, nor is there any reason to believe, that the plaintiff preferred the private responsibility of the defendant to that of the government; or that he was unwilling to contract on the faith of government. Under these circumstances, the intent of the officer to bind himself personally must be very apparent indeed, to induce such a construction of the contract.

The court can perceive no such intent. On the contrary, the contract exhibits every appearance of being made with a view entirely to the government.

The official character of the defendant is stated in the description of the parties. This, it has been said, might be occasioned by a willingness in the defendant to describe himself by the high and honorable office he then filled. This, unquestionably, is possible, but is not the fair construction to be placed on this part of the contract, because it is not usual for gentlemen, in their private concerns, to exhibit themselves in their official character.

The tenement is let to "the said Samuel Dexter and his successors;" an expression plainly evidencing that it was not for himself, otherwise than as secretary of war; and that the lessor so understood the contract. It is also evincive of the correctness of the observation of the defendant, that the words "said Samuel Dexter" refer to him in his official character, as described in the premises. The habendum is "to have and to hold the said demised *premi- [* 365 ] ses to him, the said Samuel Dexter and his successors," &c., showing, that to the knowledge of the lessor, if Mr. Dexter should go out of office the next day, the successor to the war department would succeed also to the occupancy of the office.

The covenant for quiet enjoyment during the term is with the said Samuel Dexter and his successors, and is, that they, as well as he, shall enjoy.

The covenant on the part of Mr. Dexter, on which the suit is brought, is for himself and his successors.

Lloyd v. Alexander. 1 C.

The whole face of the agreement, then, manifests very clearly a contract made entirely on public account, without a view, on the part of either the lessor or lessee, to the private advantage or responsibility of Mr. Dexter.

The only circumstance which could excite a doubt was produced by the technical operation of the seal. This, in plain reason and common sense, can make no difference in designating the person to be responsible for the contract; and so it has been determined in the case cited from 1 Term Rep. 674, Unwin v. Wolseley.

The court is unanimously and clearly of opinion, that this contract was entered into entirely on behalf of government, by a person properly authorized to make it, and that its obligation is on the government only.

Whatever the claims of the plaintiff may be, it is to the government, and not to the defendant, he must resort to have them satisfied. Judgment affirmed, with costs.

4 H. 131.

[ * 366 ]

LLOYD V. ALEXANDER, et al.

1 C. 365.

THE writ of error in this case was quashed because it was not accompanied by a citation.

MARSHALL, C. J. The law respecting the thirty days' notice on a writ of error, and the ten days allowed for filing it, was predicated upon the existing state of things at the time of passing the act; at which time there was no circuit court whose term would not be finished more than forty days before the setting of the supreme

court.

The times of the session of the courts have been altered, but no alteration has been made in the law respecting the thirty days' notice, which makes it difficult to form a rule in the case.

At present, if the citation has not been served thirty days, the court will not take up the cause until the thirty days have expired, unless the defendant in error shall appear.

A citation not served is as no citation.

5 C. 321; 6 H. 81.