# Fowle v. Common Council of Alexandria

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United States Supreme Court
28 U.S. 398
Fowle v. Common Council of Alexandria
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;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 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 authorise 'the common council?' The next law gives the authority to 'the mayor and commonalty.' There is no averment that the common council is the same body with the corporations mentioned in these acts.
The counsel then went into an examination of the laws of Virginia, incorporating the city of Alexandria, and of the act of congress on the same subject, to show that the power to take a bond from an auctioneer did not exist, or had not been continued or transferred from the corporation as originally established to that now existing, and against which the suit was instituted.
They also contended; that the claim of the plaintiff presented a case in which a corporation was asserted to be liable for having omitted to legislate for the protection of those who dealt with an officer acting under an authority derived from the corporation. Such a claim could not be maintained. It was also urged that had a bond been taken from the auctioneer, it would not have enured to the benefit of individuals transacting business with him. Its operation would have been to govern his public duties, and not to operate on his private transactions. Between the corporation taking such a bond, and those who dealt with the auctioneer, there was no such affinity as would permit them in case of default to claim the benefit of the bond. Such a provision might have been by law made, but this not having been done, its omission gave no ground of action.
As to the second point; a reference to the act of the legislature of Virginia, passed in 1792, would fully satisfy the court that a defendant has a right to plead and demur in the same case. This has been decided in the courts of Virginia. 4 Hen. & Munf. 276, 277. 2 Munf. 100.
Mr Swann, in reply, contended; that the acts incorporating the city of Alexandria, and particularly the acts of congress, were public acts, and it was not therefore necessary to introduce them into the pleadings. The court would take notice of those laws as public laws.
Until 1804, the corporate name of the defendants was 'the mayor and the commonalty;' since that year it has been 'the common council of Alexandria.' The law of Virginia at 1796, was a general public law, relating to all corporations, and became necessarily a law of this district. Without that law, the corporation had no right to license the auctioneer. The act of 1800 was passed under the authority of the law of 1796, and that act authorises a suit on the bond of an auctioneer by the party injured.
By the law of 1804 the corporation may pass all laws not inconsistent with the laws of the United States; and the plaintiff claims the benefit of the obligation imposed by the laws. The corporation was bound to take a bond with security on granting a license to an auctioneer.
By the appointment of the auctioneer the defendants held out to the community that they had taken a bond. They gave the auctioneer the credit upon which the plaintiff trusted him with his goods. They authorised him to carry on the business out of which the loss arose; a business he could not have entered upon without the license he received from the corporation.
On a demurrer every thing is to be inferred against the party demurring. The facts are admitted, and whatever conclusion they warrant may be drawn by the court. The facts show the omission to take the bond, and the inference is authorised that this was gross negligence, for which the defendants are answerable.
Mr Chief Justice MARSHALL delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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