ANONYMOUS.

Certified copies of the opinions of the court, delivered in cases decided by the court, are to be given by the Reporter; and not by the Clerk of the court.

MR WIRT moved the court to order copies of the opinion of the court delivered at this term in the case of Shanks et al. vs. Dupont et al., ante 242, to be certified with the judgment of the court, under the seal of the court. He stated, that he made the application on behalf of a gentleman who was interested in a case depending in England, upon similar principles with those decided in the case referred to; and the object was to lay the proceedings of this court, in an authenticated form, before the court in Great Britain, which was to decide the case depending there.

Mr Chief Justice MARSHALL said, that the Reporter of the court is the proper person to give copies of the opinions delivered by the court. The opinions were delivered to him after they were read, and not to the Clerk, and they were not therefore in his office to be copied. Not being filed in the clerk's office, he could not certify copies of the opinions under the seal of the court.

If an authenticated copy of the opinion of the court is desired, the Reporter only could furnish it, certified; and the Clerk of the court may certify, under the seal of the court, that he is the Reporter; if this should also be required.

WILLIAM FOWLE, SURVIVING Partner, PLAINTIFF IN ERROR vs. THE COMMON COUNCIL OT ALEXANDRIA.

The plaintiff placed goods in the hands of an auctioneer in the city of Alexandria, who sold the same, and became insolvent, having neglected to pay over the proceeds of the sales to the plaintiff. The auctioneer was licensed by the corporation of Alexandria, and the corporation had omitted to take from him a bond with surety for the faithful performance of his duties as auctioneer. This suit was instituted to recover from the corporation of Alexandria the amount of the sales of the plaintiff's goods, lost by the insolvency of the auctioneer, on an alleged liability, in consequence of the corporation having omitted to take a bond from the auctioneer.

The power to license auctioneers, and to take bond for their good behaviour, not being one of the incidents to a corporation, must be conferred by an act of the legislature; and in executing it, the corporate body must conform to the act. The legislature of Virginia conferred this power on the mayor, aldermen and commonalty of the several corporate towns within that commonwealth, of which Alexandria was then one ; “ provided that no such license should be granted until the person or persons requesting the same should enter into bond with one or more sufficient sureties, payable to the mayor, aldermen and commonalty of such corporation." This was a limitation of the power. [407] Though the corporate name of Alexandria was "the mayor and commonalty," it is not doubted that a bond taken in pursuance of the act would have been valid. [407]

The act of congress of 1804, "an act to amend the charter of Alexandria," does not transfer generally to the common council, the powers of the mayor and commonalty; but the powers given to them are specially enumerated. There is no enumeration of the power to grant licenses to auctioneers. The act amending the charter, changed the corporate body so entirely as to require a new provision to enable it to execute the powers conferred by the law of Virginia. An enabling clause, empowering the common council to act in the particular case, or some general clause which might embrace the particular case, is necessary under the new organization of the corporate body. [408] The common council granted a license to carry on the trade of an auctioneer, which the law did not empower that body to grant. Is the town responsible for the losses sustained by individuals from the fraudulent conduct of the auctioneer? He is not the officer or agent of the corporation, but is understood to act for himself as entirely as a tavern keeper, or any other person who may carry on any business under a license from the corporate body. [409] Is a municipal corporation, established for the general purposes of government, with limited legislative powers, liable for losses consequent on its having misconstrued the extent of its powers, in granting a license which it had no authority to grant, without taking that security for the conduct of the person obtaining the license, which its own.ordinances had been supposed to require, and which might protect those who transact business with the persons acting

[Fowle vs. The Common Council of Alexandria.]

under the clause? The court find no case in which this principle has been affirmed. [409]'

That corporations are bound by their contracts is admitted. That money corporations, or those carrying on business for themselves, are liable for torts is well settled. But that a legislative corporation, established as a part of the government of the country, is liable for losses sustained by a nonfeasance, by an omission of the corporate body to observe a law of its own, in which no penalty is provided; is a principle for which we can find no precedent. [409] The act of Virginią, passed in 1792, authorises a defendant to plead and demur in the same case. [409]

ERROR to the circuit court for the county of Alexandria, in the district of Columbia.

This was an action on the case brought by the plaintiff in error, against the defendants, in the circuit court, for damages charged to have been sustained by the plaintiff, in consequence of the neglect of the defendants to take due bonds and security from one Philip G. Marsteller, licensed by them as an auctioneer, for the years 1815, 1816, 1817, and 1818, according to the alleged provisions of the statute in that behalf enacted.

The declaration and pleadings are fully stated in the opinion of the court. The defendants filed a general demurrer, and pleaded the general issue.

The counsel for the plaintiff objected to the defendants' demurring, and pleading at the same time to the declaration; but the court overruled the objection, conceiving that they had a right to permit such a course of proceeding under the statute of Virginia, which is in these words: "the plaintiff in replevin, and the defendant in all other actions, may plead as many several matters, whether of law or fact, as he shall think necessary for his defence."

The court then proceeded to consider the matters of law arising upon the demurrer, and decided that the declaration and the matters therein contained, were not sufficient in law to maintain the plaintiff's action; and the plaintiff prosecuted this writ of error.

The case was argued by Mr Swann for the plaintiff, and by Mr Jones and Mr Taylor for the defendants.

For the plaintiff, it was contended, that the circuit court erred';

[Fowle vs. The Common Council of Alexandria.]

1. In deciding that the action was not sustainable on the declaration.

2. In permitting the demurrer and plea to be both filed at the same time to the declaration.

Mr Swann, for the plaintiff in error, stated that this case had been before the court in 1826, and was sent back; the court having determined that a new trial should be awarded. 11 Wheat. 320. On the argument on the former hearing, the plaintiff in error, as he does now, contended, that the corporation of Alexandria were liable for the neglect of their duties, and for the damages sustained by individuals in consequence of the same. On that argument, and in support of the principles then asserted, there were cited, Yarborough vs. The Bank of England, 16 East's Rep. 6. Riddle vs. The Proprietors, &c. 7 Mass. Rep. 169. The principles on which the whole claim of the plaintiff rested having been thus fully stated and discussed, and the authorities for them having been vouched, the plaintiff had a right to believe that when the case was remanded upon technical rules, and without a disaffirmance of the principles on which the claim was then placed, they had the sanction of this court. The court will now say whether the question of responsibility is still open.

If it is to be discussed; a reference to the authorities formerly cited, will dispose of it in favour of the plaintiff in error. The liability charged to the corporation is fully within the rules to be found in adjudged cases. Those which were cited sustain the principle. Banks are liable for negligence ; and the law of corporation, as it is now understood, places such bodies under the same obligations, and gives the same remedies against them as are given in the cases of individuals. They have been held answerable to this extent by this court. Clark vs. The Corporation of Washington, 12 Wheat. 40. Bank of Columbia vs. Patterson's Administrators, 7 Cranch, 209.

As to the second point. There cannot be a plea and a demurrer to the same declaration. It is competent for a defendant to plead as many matters of fact as he desires, or he may do so as to matters of law; but upon the rules of

[Fowle vs. The Common Counefl of Alexandría.]

pleading, both cannot be done. A demurrer admits the facts, and raises questions of law upon them; a plea puts them in issue. There is, therefore, a direct contradiction between them.

This practice does no good to the party adopting it. Nothing is decided by either course until all is decided, and the opposite party is exposed to great trouble. By pleading alone, the whole questions of law and fact which arose in the case would have been fully presented for decision. It is denied that the law of Virginia sanctions this practice. The act of Virginia, of 1784, prohibited pleading and demurring to the same declaration.

Mr Taylor and Mr Jones, for the defendants.

The plaintiff in error intended to present this question of the liability of the defendants, but this has not been done in the declaration. It is asserted by him, that the defendants, a municipal corporation, are liable to him for damages for not carrying their own laws into effect.

The suit is against the common council of Alexandria; for appointing an auctioneer, without taking a bond with sureties for the performance of his duties. The second count alleges the liability of the defendants, for suffering the auctioneer to act without having given security. It should appear what the damages sustained by the plaintiff were; and the declaration should have shown the power of the corporation, and their obligation to exercise those powers for the protection of the plaintiff from those damages.

What damages has the plaintiff sustained? It is assumed, that had the bond been taken, he would have been indemnified by its provisions, and that it would have covered the defalcations of the auctioneer. The duties of the defendants should have been specified by a reference to the laws enjoining them; the suit is in the nature of a penal action, and nothing should have been left to inference.

It has not been shown that the common council of Alexandria has the power to grant licenses to auctioneers. The law of Virginia, of 1796, gave that authority to" the mayor, aldermen and commonalty;" but does this extend to authoVOL. III.-3 A