Hodgson vs. Dexter. 1. That under this contract the defendant was bound in his private capacity. 2. 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 government; 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, and no prudent man would consent to become a public 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; 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 Hodgson vs. Dexter. 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 premises 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. 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 Unwin v. Wolseley, 1 Term. Rep. 674. The Court is unanimously and clearly of opinion that this contract was entered into entirely on behalf of government by a Hunt vs. Rousmanier. 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. The principles of this case have been recognised in the leading States of the Union; New York, Virginia, Massachusetts, Connecticut, Maine, Tennessee, &c., &c. Walker vs. Swartwout, 12 J. Rep. 444. Olney vs. Wickes, 18 J. Rep. 122. Motts vs. Hicks, 1 Cow. 513. Brown vs. Austin, 1 Mass. 208. Dawes vs. Jackson, 9 Mass. Rep. 490. Syme vs. Butler, 1 Call. 105. Tutt vs. Lewis, 3 Call. 233. Adams vs. Whillesley, 2 Conn. Rep. 560. Stinchfield vs. Little, 1 Greenl. 231. HUNT US. ROUSMANIER'S ADMINISTRATORS. * When a Power of Attorney will or will not be revoked by the death of the Principal. ROUSMANIER, the intestate of the defendants, had borrowed, before his death, several sums of money from the plaintiff, for which he gave his promissory notes. To secure their payment, he had executed and delivered to the plaintiff, a power of attorney, authorizing him to make and execute a bill of sale of his, Rousmanier's, interest in the brig Marcus, then on a voyage at sea, to himself or to any other person he should think proper; and in case of the loss of the said vessel, or her freight, to collect for his own use all moneys which would become due on a policy by which the vessel and her freight were insured. The instrument purported to be given as collateral security for the payment of the notes which have been mentioned, and contained a proviso, that if these notes were paid as they fell due, the power should cease and be surrendered, and the policy returned; other * 8 Wheat. 174, 5 Cond. 400. Only so much of this case is stated, as is necessary to the understanding of the points considered by the Court, in the portion of the opinion which we have extracted. Hunt vs. Rousmanier. wise the plaintiff was to pay himself the amount thereof, and all expenses, out of the said vessel, and restore the residue to the intestate. The intestate died insolvent, and upon the return of the vessel mentioned to port, the plaintiff took possession of her, and offered her for sale. The administrators forbade the sale, and the question was, as to the right of the plaintiff to proceed. The counsel for Hunt contended that the power of attorney entitled him by its own operation, for the satisfaction of his debt, to the interest of Rousmanier in the vessel. On this point, the opinion of the Court, delivered by C. J. Marshall, was as follows: This instrument contains no words of conveyance or of assignment, but is a simple power to sell and convey. As the power of one man to act for another depends on the will and license of that other, the power ceases when the will, or this permission, is withdrawn. The general rule, therefore, is, that a letter of attorney may at any time be revoked by the party who makes it; and is revoked by his death. But this general rule, which results from the nature of the act, has sustained some modification. Where a letter of attorney forms a part of a contract, and is a security for money, or for the performance of any act which is deemed valuable, it is generally made irrevocable in terms, or if not so, is deemed irrevocable in law; 2 Esp., N. P. Rep. 565. Although a letter of attorney depends, from its nature, on the will of the person making it, and may in general be recalled at his will; yet if he binds himself for a consideration, in terms, or by the nature of his contract, not to change his will, the law will not permit him to change it. Rousmanier, therefore, could not, during his life, by any act of his own, have revoked this letter of attorney. But does it retain its efficacy after his death? We think it does not. We think it well settled, that a power of attorney, though irrevocable during the life of the party, becomes extinct by his death. This principle is asserted in Littleton (sec. 66), by Lord Coke, in his commentary on that section (52 b.), and in Willes's Reports (105 note, and 565). The legal reason of the rule is a plain one. It seems founded on the presumption, that the substitute acts by virtue of the authority of his principal, existing at the time the act is performed; and on the manner in which he must execute his authority, as stated in Coombe's case, 9 Co. 766. Hunt vs. Rousmanier. In that case it was resolved, that "when any has authority as attorney to do any act, he ought to do it in his name who gave the authority." The reason of this resolution is obvious. The title can, regularly, pass out of the person in whom it is vested, only by a conveyance in his own name; and this cannot be executed by another for him, when it could not, in law, be executed by himself. A conveyance in the name of a person who was dead at the time, would be a manifest absurdity. This general doctrine, that a power must be executed in the name of a person who gives it, a doctrine founded on the nature of the transaction, is most usually engrafted in the power itself. Its usual language is, that the substitute shall do that which he is empowered to do in the name of his principal. He is put in the place and stead of his principal, and is to act in his name. This accustomed form is observed in the instrument under consideration. Hunt is constituted the attorney, and is authorized to make, and execute, a regular bill of sale in the name of Rousmanier. Now, as an authority must be pursued, in order to make the act of the substitute the act of the principal, it is necessary that this bill of sale should be in the name of Rousmanier; and it would be a gross absurdity, that a deed should purport to be executed by him, even by attorney, after his death; for the attorney is, in the place of the principal, capable of doing that alone which the principal might do. This general rule, that a power ceases with the life of the person giving it, admits of one exception. If a power be coupled with an “interest," it survives the person giving it, and may be executed after his death. As this proposition is laid down too positively in the books to be controverted, it becomes necessary to inquire what is meant by the expression, "a power coupled with an interest?" Is it an interest in the subject on which the power is to be exercised, or is it an interest in that which is produced by the exercise of the power? We hold it to be clear, that the interest which can protect a power after the death of a person who creates it, must be an interest in the thing itself. In other words, the power must be engrafted on an estate in the thing. The words themselves would seem to import this meaning. "A power coupled with an interest," is a power which accompanies, or is connected with, an interest. The power and the interest are united in the same person. But if we are to under |