FEDERAL REPORTER,
vol. 41.
was patented, relie\'ed the board from the necessity of advertising. In the cases referred to by the plaintiffs, (Yarnold v. Oily of Lawrence, 15 Kan. 126; Hobart v. Detroit. 17 Mich. 246; Attorney General v. Detroit, 26 Mich. 263; In re Dugro, 50 N. Y. 513,) we find that an advertisement for bids was made in each instance, except in the case of Yarnold v. Oity of Lawrence, and there the court· held that by the terms of the statute the city was not required to advertise. The form in which this question has usually been presented, and upon which there is a conflict of thority, is whether a city has a right to avail itself of a patented invention in the improvement of its streets, where the law requires the letting of contracts to the lowest. bidder. Upon this question the adjudications are not uniform, as will be seen by comparing the cases ,already cited with the following: Pat'ement (l,o. \'. Painter, 35 Cal. 699; Zottman v. San Pranci8co, 20 Cal. 96; Dean v. Oharlton, 23 Wis. 590; Burgess v. Oity of Jefferson, 21 La Ann. 143. The ground upon which the courts hold that the city has no right to accept a patented article, where the law requires a letting to the lowest bidder, is that the law means that there should be a competition among bidders, and that in the case of a patented invention there is no competition. It is urged by the plaintiffs that by the terms of the ordinance the board were not obliged to accept the lowest bidder; and therefore, having determined upon the Worthington pump, it was useless to advertise for bids·.. However this may be in this particular case, I think it would be a dangerous principle to establish that, because one feature of an article which the city desired was patented, the board thereby can waive the requirement of advertising, and the advantages of publicity,and secretlymake their own selection. Even though a thing may be patented, it may form So subject of competition, because there may be numerouslicenseE's under the patent. The ground upon which I decide against the plaintiffs on this point is that the ordinance obliged the board to advertise Jor proposals, and that it was beyond their power to waive or dispense with this requirement, and thatr therefore the contract which was made, and upon which the plaintiffs rely I was void. Judgment for defendant.·
UNITED STATES V. THOMPSON.
(otrcuit Oount, 8. D. N"w YOTk.
November 00, 1889.)
LA.BoItERS....." ARTISTS "-MILLINERS;
At Law. Action to recover penalty. The defenda.nt employed in France a woman to come to New York and work for him asa· trimmer of hats, and paid her passage to thip
UNITED STATES ,. THOMPSON.
The jury rendered a verdict for the plaintiff in accordance with the direction of the -court_
'1'
.BERNARDt1;BoWE.
:: ",;:
Oourt. S. D. New: York. December 80,1889;)
Smnuus-WJtQNGIIPL: DELIVERY OIl A-rrAOHED PROPERTy-LIMITA'l'ION OJ' ACTIONS. Under Code Civil ProO. N. Y. § 885. which provides actions must be brought
within on. year after the cause of action accrues against a sherifi' or coroner. UpOll: aUability incurred by him by doing an act in his official capacity. or py the omission of an except the non-payment of money collected l1pon an execu. tion, an actl:Pttligainsta sherifi' for wrongfully delivering plaintiff'S property to a. third person, after the attachment suit in which the sherift had seized the property had beeD dismissed, must be brought within ODe year· · t.:' ',''., , "
At Law. On demurrer. Edwar.d g, ferkina,.for ·. Ch:arle8 F. McLean, for defendant. , ' r !,. .>.
'.'
·
W ALLA<:E,. J;., The complaint in this action avers that the defendant was sheriff .ofthe oity and county of New York from ,the 1st of January, 1880, to the 31st of December, 1882; ,that in 1882, in an action brought by the king of the Belgians against the plaintiff, a warrant ofattachment was issued to the defendant, as sheriff, against the property of the plain. tiff, and hy virtue thereof the defendant seized certain property belong. ing to the plaintiff; that in '1883 the action was discontinued, and the warrant of attachment annulled;' and that thereafter the defendant, with. out right, delivered the property toone Bourgeois, who had no right or authority from the plaintiff to receive the same. By reason of the prem..: ises the plaintiff alleges he sustained damages in the sum of 8600,000. The defendant, among other defenses, alleges that the cause of action stated in the complaint did not accrue within one year before the com· mencernent ofthe action.. This defense is founded upon. the provisions of section 885· of the Code of Civil Procedure of this state, which pro· videa that an action must be.commenced within one year after the cause of action has.accrued "against aaheriff or coroner, upon a liability in· Cllrred by him by doing an act in his official capacity, or by the ornie. sion of an official duty, except the non-payment of money collected upon an execution." ("To this defense the plaintiff has demurred. . Unless the:acts set forth in the complaint were done by the defendant colore ojJWii"allthe averments respecting his official oharacter, and the particular circumstances under. which he took the plaintiff's property and parted with it, are of no significance. and the simple averment of a wrongfuHakingand convei'Sion:ofthe property by the defendant would have sufficed. He is charged with delivering property 'Of the plaintiff, which he rightfully seized as sheriff by the warrant of attachment, to a third person, who had no authority to receive it. His duty was, when the suit was discontinued and the warrant anilUlled, to deliver the prop. erty to the plaintiff, or "to the person entitled thereto, upon reasonable demand, and upon payment of all costs, charges," etc., and "file the warrant, with a return of his proceedings thereon, with the clerk" of the
