
    Robert Dawes versus Daniel Jackson.
    Where one made a contract, as superintendent of the slate prison, to furnish the labor of a certain number of convicts to one who was to employ them, and failed to perform the contract, having, at the time of the contract, sufficient authority to make it, he was holden not to be personally liable thereon.
    Covenant broken, upon an indenture of two parts, wherein the defendant, “ as superintendent or agent of the Massachusetts state prison,” covenanted to furnish the plaintiff with a number of convicts, from 20 to 40, for one year from the date, for the purpose of employing them in the business of plating and harness-making, or the manufactory of such other articles as the defendant might find profitable, and to furnish stock as it might be wanted monthly, and to provide tools, &c., and to give the plaintiff the same powers over the convicts as the assistant keeper had ; in consideration of which, the plaintiff, on his part, promised faithfully to superintend the convicts, &c., one half of the profits to belong to the plaintiff. The plaintiff avers a performance of all the covenants on his part to be performed, and alleges that the defendant never furnished the necessary stock in sufficient quantities; for want whereof, * instead of 2000 dollars net profits, which the plaintiff might have realized, the actual profits were not sufficient to defray the expenses of the manufactures.
    The defendant, after oyer of the indenture, pleads, 1. Non est factum.
    
    2. In bar, that at the time, &c., he, the said D. J., for a long time before had been, and then was, agent or superintendent of the state prison in Charlestown, duly appointed, &c., and the governor and council, pursuant to the powers vested in them for that purpose, made and established certain regulations, among other things, for employing the prisoners, and purchasing materials to be wrought by them, by which it became the duty of said agent or superintendent, among other things, to do all such acts as might be necessary for employing the prisoners and keeping the prison aforesaid, and to purchase materials to be wrought by them ; and that, by virtue of the powers vested in him as agent or superintendent, as aforesaid, and as agent, and not otherwise, he made and executed the covenants in said indenture contained ; and this, &c.; wherefore he prays judgment if he ought to be charged by force of the covenants in the said indenture contained, &c.
    3. In a third plea, the defendant alleges the performance of all his covenants until a certain day within the year, on. which day the governor and council made and established a certain other regulation, by which the power of providing materials and employing the prisoners was vested in another agent or superintendent, and taken from the defendant, who no longer furnished the necessary stock, but left the same to be furnished by his successor, of which the plaintiff had notice, &c.
    To the two last pleas the plaintiff demurs generally, and the defendant joins in demurrer.
    
      Bigelow,
    
    for the plaintiff, as to the second plea, contended that the defendant was not authorized to bind the govern-merit, *and of course he must be personally answerable on his covenants, which were merely personal.  The naming himself agent or superintendent was merely descriptio persona, or, at most, was intended to show that he had authority to control the prisoners. Had the plaintiff broken the covenants to be performed by him, the defendant would have had the right of action, and not,the government which employed him.
    As to the third plea, Bigelow was stopped by the Court, who observed that, if the defendant was personally bound by his covenants, the averments in that plea could furnish no justification or excuse for the non-performance of them.
    
      Morton (Attorney-General) and Dana for the defendant.
    
      
       5 East, 148, Appleton vs. Binks. — 4 Mass. Rep. 595, Tippets vs. Walker & Al
      
    
   Curia.

We are of opinion that the defendant’s second plea in bar is a sufficient defence to the action. He made the covenants as superintendent of the prison. He had, at the time, sufficient authority, in virtue of his office, to make the contract; and the government was bound by every equitable principle to see it executed. The plaintiff has no remedy but by application to the government. The second plea in bar is adjudged good, 
      
      
         [Chandler vs. Mann, ante, 335. — And see Story on Agency, pp. 137—152. — Ed.]
     