2 L.Ed. 130
AN action of covenant was instituted in the circuit court of the county of Washington in the district of Columbia, against the defendant, late secretary at war, by the plaintiff, who was the owner and lessor of a house in the city of Washington, and which was by him leased to the defendant, Mr. Dexter, for the purposes of the war department. The buildings were destroyed by fire, and the plaintiff claimed to recover the value of them from the defendant, in this suit. The lease was in the following words:
'This indenture, made the 14th day of August, 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.'
SAMUEL DEXTER, Seal.
JOSEPH HODGSON, Seal.
Signed, sealed and delivered in the presence of
S. Lewis, Jun. The breaches stated in the declaration were two.
1. That the defendant did not during eight months keep the premises in repair, &c. and hath not delivered up the same in good repair at the end of the time.
2. That the defendant did not keep the premises in repair, inevitable casualties excepted; but the same were destroyed by an evitable casualty, to wit, fire, which was occasioned and took place from negligence, or from the act or acts of one or more evil disposed persons.
To this declaration the defendant pleaded, That on the 8th of November 1800, the premises, against the will and without the negligence or other default of him the said Dexter, were burned and consumed by fire from some cause to him wholly unknown.
To this plea the plaintiff demurred, and the defendant joined in the same.
The defendant also pleaded, '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 various 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 1st 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 1st 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 first 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 esquire, 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.
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 Hodgson is ready to verify,' &c.
To this replication, there was a general demurrer and joinder.
The defendant also pleaded, '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 defendant's 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 plea the defendant demurred generally; and the plaintiff joined in the same.
The circuit court gave judgment for the defendant, and the plaintiff prosecuted this writ of error.
[Argument of Counsel from Pages 349-363 intentionally omitted]
Mr. Chief Justice MARSHALL delivered the opinion of the court.