[Fowle vs. The Common Council of Alexandria.j

same time a demurrer, and a plea to the whole declaration, but the court overruled the objection, under the act of assembly, 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, having sustained the demurrer, and entered judgment for the defendants; the plaintiff has brought the cause by writ of error into this court.

"The power to license auctioneers, and to take bonds for their good behaviour in office, 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 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 securities, payable to the mayor, aldermen, and commonalty of such corporation." This was a limitation on the power.

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. Jones, 261.

In the year 1800, when the, corporation of Alexandria determined to act upon this law, an ordinance was passed authorising "the mayor and commonalty" to grant licenses to auctioneers, provided that no such license should be granted, until bond with sufficient sureties should be given, payable to "the mayor and commonalty." It may well be doubted, whether this ordinance is sustained by the legislative act, in pursuance of which it was made. That act authorised "the mayor, aldermen and commonalty" to grant licenses to auctioneers, first taking bonds payable to the "mayor, aldermen and commonalty." The ordinance omits the "aldermen," both in the clause which empowers the body to grant licences, and in that which names the obligees in the bond.

But supposing this difficulty to be entirely removed, we

[Fowle vs. The Common Council of Alexandria.]

are next to inquire whether the powers to grant licenses to auctioneers, and to take bonds for the performance of their duty, which were given by the act of 1796 to the mayor, aldermen and commonalty, and by the ordinance of 1800 to the mayor and commonalty, have been transferred to, and vested in the common council of Alexandria.

This depends on the act of congress, passed in 1804, “to amend the charter of Alexandria." Under this instrument, the corporate body consists of the common council alone. The mayor is separated from them, and the aldermen are discontinued. The power of the mayor and commonalty are not transferred generally to the common council, but the powers given them are specially enumerated. We do not find, in the enumeration, the power to grant licenses to auctioneers. If it could be maintained that the repealing clause does not comprehend the act of 1796, still the act amending the charter changes the corporate body so entirely, as to require new provisions to enable it to execute the powers conferred by that act. The corporate body is organized anew, and does not retain those parts which are required for the execution of the act of 1796. 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. It has been already said that we find no particular provision, and the general powers granted are so limited by the language of the grant, that they cannot be fairly construed to comprehend the subject of licenses to auctioneers.

It may be admitted that the ordinance of 1800 is not repealed by the act amending the charter. But that ordinance is not adapted to the new corporate body, and could not be carried into execution by the common council, till modified by some act of legislation.

The common council took up this subject in 1817, and passed the act recited in the declaration. We are relieved from inquiring whether this act removed or could remove the difficulties which have been stated, by the circumstance that the declaration changes the nonfeasance, which is the

[Fowle vs. The Common Council of Alexandria.]

foundation of the action, as commencing in the year 1815. We do not think any law then existed which empowered the common council of Alexandria to license auctioneers, or to take bonds for the faithful performance of their duty. The injury alleged in the declaration, as the foundation of the action, is the omission to take the bond required by law. Now if the common council was not required or enabled by law to take a bond, the action cannot be sustained.

If the declaration is to be considered as stating the cause of action to be the granting a license, without previously requiring a bond; it will not, we think, help the case. The common council has 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."

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 not 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 transacted business with the person acting under the license? We find no case in which this principle has been affirmed.

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. We are not prepared to make one in this case.

In permitting the defendant below to demur and plead to VOL. III.-3 B

[Fowle vs. The Common Council of Alexandria.]

the whole declaration, the circuit court has construed the act on that subject as it has been construed by the courts of Virginia.

There is no error, and the judgment is affirmed with costs.

This cause came on to be heard on the transcript of the record from the circuit court of the United States, for the district of Columbia, held in and for the county of Alexandria, and was argued by counsel; on consideration thereof, it is ordered and adjudged by this court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed with costs.

JOHN CLAY, PLAINTIFF IN ERROR 98. ABRAHAM Smith.

The plaintiff below, a citizen of the state of Kentucky, instituted a suit against the defendant, a citizen of Louisiana, for the recovery of a debt incurred in 1808, and the defendant pleaded his discharge by the bankrupt law of Louisiana in 1811; under which, according to the provisions of the law, "as well his person as his future effects" were for ever discharged "from all the claims of his creditors." Under this law, the plaintiff, whose debt was specified in the list of the defendant's creditors, received a dividend of ten per cent on his debt, declared by the assignees of the defendant. Held, that the plaintiff, bý voluntarily making himself a party to those proceedings, abandoned his extraterritorial immunity from the operation of the bankrupt law of Louisiana; and was bound by that law to the same extent to which the citizens of Louisiana were bound.

The plaintiff in error having died while the cause was held under advisement, the judgment was entered nunc pro tunc, as on the first day of this term.

ERROR to, the district court of the eastern district of Louisiana.

This case was argued at January term 1828, by Mr Livingston, and was held under advisement until this term; on the suggestion of counsel, and for information upon the law of the state of Louisiana, referred to in the opinion of the court.

Mr Justice JOHNSON delivered the opinion of the Court. This case comes up from the Louisiana district, by writ of error, to reverse a judgment obtained there by Smith vs. Clay.

Smith, is a citizen of Kentucky, and Clay, of Louisiana; and the action was brought to recover a debt incurred in the year 1808.

Clay's defence rests upon the validity of a discharge obtained in a court of the state, under a law of the state, in the year 1811. The plea sets out his petition to the court; his surrender of his effects; the schedule of his debts, in which Smith's debt is specified, as also the payment to him of ten per cent, the dividend declared by the assignees of