N. Y. Superior Court.-T. Paton, D. Stewart and W. Paton agt. John J. V. Westervelt. lent his aid." The ground on which the decision relating to this branch of the case was placed, is the same that governed the Court in the decision of Warmoll v. Young. It is not an authority for the proposition that a sheriff holding two executions, who is notified by the owner of the junior one, that he shall insist that the junior one is issued on a judgment fraudulent as against creditors, is bound to incur the risks of a litigation of that point, or to hold the proceeds of the property levied on an indefinite period of time, at the peril of being charged by the junior execution creditor with the consequences of a false return, if he applies the money to satisfy the one first levied, and returns the other nulla bona. No such general proposition is affirmed by the Court, on the contrary its decision is placed on different grounds.

Saunders v. Sheriff of Middlesex, 3 Barn. and Ald. 95, was decided on the ground that it was the sheriff's own fault, that the moneys realized by a sale of property of the judgment debtor, had been ordered to be paid to the debtor by a rule of court; that the court would not have made such a rule if the fact had been made known to it; that the sheriff held an execution in favor of the plaintiff, and would have modified the rule on a motion based on affidavit of such a fact.

We are agreed in the opinion that the plaintiffs cannot maintain this action, by giving the proof offered and rejected, relative to the Toler judgment having been confessed with an intent to defraud creditors.

A more serious difficulty is presented by other undisputed facts appearing in the case. The sheriff has in his hand $52 24, part of the proceeds of the property levied on while the executions belonging to the plaintiffs were in his hands, to which moneys he makes no personal claim, but which, as his reply states, are to be applied on the Toler execution. Besides the amount necessary to pay for the services for which compensation is specifically prescribed by the statute, he has in his hands the further sum of $439 76, which he claims the right to retain to his own use to satify certain charges which are enumerated in the complaint.

It is not necessary to discuss the question whether he has a right to retain all or any part of the $4397%.

76

If not entitled to retain the whole of it, his position as to the part he is not entitled to retain, is the same as to the $52 24.

He is sued for falsely returning nulla bona to the plaintiffs' executions. The plaintiffs make a prima facie case, by showing that he holds moneys which are the proceeds of defendant's property, sold while these executions were in his hands. The sheriff meets this claim by showing that he received an execution in favor of Toler, against the same debtor, prior to his receipt of those belonging to the plaintiff. If that execution was still in his hands, it would be a prima facie defence to this action. But he had returned that nulla bona before this action was brought. The defence is simply this: he is not liable to the plaintiff, because he has falsely returned nulla bona to a prior execution, when his duty required him as between the execution creditors, to have applied the surplus on the Toler execution, and to have returned it satisfied pro tanto. Can a sheriff protect himself against such an action, under a prior

N. Y. Superior Court.-T. Paton, D. Stewart and W. Paton agt. John J. V. Westervelt.

execution so returned? Is he at liberty to say this return is true, because another return is false, or to protect himself from the consequences of a return apparently false, by showing another return to be actually so?

In Towne v. Crowder, 2 Car. and P. 356, Best, Ch. J., held that he could not.

There may be many reasons to justify such a return, notwithstanding the priority of the Toler execution. If the Toler judgment was fraudulent as against the plaintiffs, the sheriff, if he saw fit to do so, was at liberty to return it nulla bona, and if sued for a false return, could protect himself by proof of the plaintiff's judgments and executions, and that the judgment in favor of Toler was confessed with intent to hinder, delay and defraud the crcditors of Purdy.

Shattock v. Carden et al., 11 L. & Eq. R., 570; Pierce v. Jackson, 6 Mass., 242; Lovick v. Crowder, supra.

If the sheriff was notified that the Toler judgment was fraudulent and void as against the plaintiffs, and that they should, on that ground, insist on having the proceeds of the sale applied on their executions, the sheriff, if cognizant of facts which would incontrovertibly establish the fraud, not only had the right, but it was his duty to return the Toler execution unsatisfied, Whatever may be the reason which induced him to so return it, we are satisfied that he cannot defend this action by showing that return to be false.

To justify under a levy by a prior execution, he must either have executed such execution by an application upon it of the proceeds of the property sold, or have it in his hands unreturned. If he has neither executed it, and applied the proceeds of the property upon it, nor has it in his hands, so that he is bound and has authority to execute it, and make such application; but, on the contrary, has returned it nulla bona, he is not at liberty to say in such an action, that the return is false, that it was his duty to have applied the money on it against his return, that it was not his duty, and that, therefore, the present plaintiffs are not entitled to recover. On this ground, a new trial must be ordered, with costs to abide the event.

N. Y. Sup. Court.-The Attorney-General and ors. agt. the Mayor of N. York and ors.

Special Term, 1853.

Before Mr. JUSTICE DUER.

THE ATTORNEY-GENERAL OF THE STATE OF NEW YORK, THOMAS E. DAVIS AND COURTLANDT PALMER, against THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK AND JACOB SHARP AND OTHERS, (THE BROADWAY RAILROAD GRANTEES.)

A Judge who has tried a cause without a jury, is not bound to state in his decision all the facts of the case, as is necessary in a special verdict.

He fulfils his duty by determining all the issues which, in his judgment, are material— Held, that the only material issues in the case under consideration, were, 1st. Whether the intended railroad in Broadway will be a public nuisance; and 2d. Whether the grant of the privilege of constructing this railroad was a fraudulent breach of trust

Held, that as the Plaintiff's had failed to prove to the satisfaction of the Court the affirmative of these issues, they must be determined in favor of the Defendants.

An ordinance of the Common Council, securing to certain persons the privilege of laying down a railroad, and of transporting passengers thereon, in a public street, is not a law, but a grant, which, when accepted, becomes a contract.

A municipal corporation cannot make a contract abridging its legislative or discretionary powers as defined by its charter.

The contract when such would be its effect, if construed according to its terms, is not valid, until revoked or repealed; but from the original defect of power, and as a violation of the Charter, is void in its origin.

A municipal corporation has no power to create a monopoly; and every grant of an exclusive privilege, from the use of which a profit is to be derived, creates a monopoly.

A municipal corporation can neither create corporate powers in a joint stock association, nor exempt it from the ordinary rules by which partnerships are governed.

The Common Council, under the amended Charter, cannot make an absolute contract for work to be done; but can only authorize such a contract to be made by the head of the proper department.

The Mayor of the city has an absolute discretion in the choice of the persons to whom licenses may be granted, as owners of carriages for hire: and this discretion cannot be taken from him by any act of the Common Council.

Held, that the ordinance of the Common Council, which granted to Jacob Sharp and others the exclusive privilege of laying down and establishing a railroad in Broadway, violated, on its face, all the principles above stated, and was, therefore, null and void.. Judgment, without costs, in favor of Plaintiffs and a perpetual injunction.

This suit was originally commenced by Davis and Palmer as plaintiffs, against the Mayor, &c., of New York, upon a complaint, setting forth that the plaintiffs were citizens and tax-payers, and owners on Broadway. The complainant alleged, that the Common Council had passed and adopted a certain Resolution, in the words following:

Resolved, That Jacob Sharp, Freeman Campbell, William B. Reynolds, James Gaunt, I. Newton Squire, Wm. A. Mead, David Woods, John L. O'Sullivan, Wm. M. Pullis, Jonathan Roe, John W. Hawkes, James W. Faulkner, Henry Du Bois, John J. Hollister, Preston Sheldon, John Anderson, John R. Flanagan, Sargent V. Bagley, Peter B. Sweeny, Charles B. White, James W. Foshay, Robert E. Ring, Thomas Ladd, Conklin Sharp, Samuel L. Titus, Alfred Martin, D. R. Martin, William Menzies, Charles H. Glover, Gershon Cohen, and those who

N. Y. Sup. Court.-The Attorney-General and ors. agt. the Mayor of N. York and ors.

may, for the time being, be associated with them, all of whom are herein designated as associates of the Broadway railway, have the authority and consent of the Common Council to lay a double track for a railway in Broadway and Whitehall or State street, from the South Ferry to Fiftyninth street, and also, hereafter, to continue the same, from time to time, along the Bloomingdale road to Manhattanville, which continuation they shall be required, from time to time to make, whenever directed by the Common Council, the said grant of permission and authority being upon and with the following conditions and stipulations, to wit:

First. Such tracks shall be laid under the direction of the Street Commissioner, in or near the middle of the street, the outer rails not exceeding twelve feet six inches apart, and the rails being flush and even with the pavement, the inner portion of the rail being of equal height with the outer, with grooves not exceeding one inch in width, or such other rails as shall be approved by the Street Commissioner or the Common Council, on such grades as are now established, or may hereafter be established, by the Common Council; and the said associates shall keep in good repair the space between the said rails; and one foot on each side, and no motive power, excepting horses, shall be used below Fifty-ninth stteet.

Second. The said associates shall place new cars on said railroad, with all the modern improvements, for the convenience and comfort of passengers. And they shall run cars thereon every day, both ways, as often as the public convenience may require, under such direction as the Common Council may, from time to time, prescribe. Said cars, with horses attached, not to exceed forty-five feet in length.

Third The said associates shall, in all respects, comply with the directions of the Common Council in the building of such railway, and in the running of the cars thereon.

Fourth. At the Bowling Green, the said associates may divide the two tracks aforesaid, running one of them down Whitehall street, and the other down State street, should they deem such division necessary; and also, whenever in the course of their route the said road shall pass a public square, it may be carried, with a single track, round both sides of said square, instead of only one, for the better accommodation of the public on both sides thereof.

Fifth. The said associates shall be required to procure a depot, at some place near or at the lower part of said route, for the purpose of keeping withdrawn from Broadway such proportion of the cars coming down in the morning as shall not be required for the accommodation of the return travel until the afternoon; and also, they shall be required to stop a portion of the cars at the Park, and to send down below that point no greater proportion of the whole number employed, than shall be found by experience to be requisite for the accommodation of the travel below that point, subject to the regulation by the Common Council.

Sixth. The cars shall be so constructed as not to make provision intended for standing passengers to crowd upon the seated passengers; and also, when all the seats are full, the cars shall not be stopped to

N. Y. Sup. Court.-The Attorney-General and ors. agt. the Mayor of N. York and ors. take in more passengers to be crowded into the said seats; a flag being displayed in front of the car to give notice that all the seats are full.

Seventh. The said cars shall not be allowed to stop, so as to obstruct a crossing, nor to stop more frequently in a block (unless the same be of extraordinary length) than just beyond its first crossing, except in rainy weather.

Eighth. The said associates shall keep an attendant, distinguishable by some conspicuous mark or badge, at every such appointed place, in all the parts of the street usually much crowded with vehicles, whose duty it shall be, with attention and respect, to help in and out of the cars all passengers who may desire such assistance, and in general to watch over the safety of passengers from all dangers of passing vehicles. Ninth. The said associates shall be required to keep, or cause to be kept in readiness, a number of sleighs adequate to the public accommodation, when the travel of the cars may be obstructed by snow.

Tenth. The said associates shall cause the said street to be well swept and cleaned every morning, and the sweepings carried away, before eight o'clock in the summer, and nine o'clock in winter, except Sundays; this provision applying to the whole of the street south of Fourteenth street, above which point the same shall be done as often as twice a week when the weather shall permit.

Eleventh. No higher rate of fare shall be charged for the conveyance of passengers from any one point to any other point along said route, and such combined system of routes as may hereafter be adopted by means of cars and transverse omnibuses, than five cents for each pas

senger.

Twelfth. In consideration of the good and faithful performance of all these conditions, stipulations and requirements, and of such other requirements as may hereafter be made by the Common Council, for the regulation of the said railway, as aforesaid, the said associates shall pay, for ten years from the date of opening the said railway, the annual license fee for each car, now allowed by law, and shall have a license accordingly; and after that period, shall pay such amount of license fee, for further licenses, as the corporation, with permission of the Legislature, shall then prescribe; or, in default of consenting thereto, shall surrender the road, with all the equipments and appurtenances thereto belonging, to the said corporation, at a fair and just valuation of the

same.

Thirteenth. Within a reasonable time after the passing of this resolution, the said associates, or a majority in interest thereof, shall form themselves into a joint stock association, which association shall be vested with all the rights and privileges hereby granted, and shall have power, by the votes of at least a majority in interest of the associates, to frame and establish articles of association and by-laws, providing for the construction, operation, and management of the said railway, the mode of admitting new associates, and of transferring the shares or interests of any of the associates to new associates or assigns, the number, duties, mode of appointment, tenure, and compensation of officers, the manner of making contracts, amending the by-laws, and calling in assessments