And though the fear of introducing so much litigation ought not to prevent the plaintiff recovering, if by law he is entitled, yet it ought to have considerable weight in a case where it is admitted that there is no precedent of such an action having been before attempted.' These considerations are applicable to the present case. The effect of maintaining actions like the present would be to transfer to the supervision of the courts of law the question of the proper management of our jails and houses of correction, and require them to pass upon all the alleged abuses arising from neglect by the officers to discharge the functions of their offices properly. And we cannot think that any such relation exists between a prisoner in a house of correction and the keeper thereof, as will authorize a civil action for any such neglect of duty by the keeper as those shown in the present case."

The

And in O'Hare v. Jones (1894) 161 Mass. 391, 37 N. E. 371, the plaintiff, while serving at hard labor in a house of correction for the commission of a crime, was injured by having his hand caught in a planing machine upon which he had been set to work. action was brought against the general superintendent of prisons for the commonwealth and the master of the house of correction in which the prisoner was confined, on the ground that these two were negligent in appointing the superintendent and instructor of the planing room, who was alleged to be an incompetent instructor and negligent in not providing a suitable machine and in improperly instructing the plaintiff in the use of it, and against this superintendent and instructor an action was also brought. It was held that neither of the defend46 A.L.R.-8.

ants was liable, inasmuch as they were

public officers performing a public service. The court said: "It is inconsistent with the purpose for which prisons are established, and with the discipline which must be maintained over prisoners, that the officers should be responsible to the prisoners in private actions for mere negligence in the performance of their duties."

And in Lunsford v. Johnston (1915) 5 Tenn. C. C. A. 565, affirmed in (1915) 132 Tenn. 615, 179 S. W. 151, 11 N. C. C. A. 638, it was held that the superintendent of a county workhouse was not liable for the act of a subordinate, a workhouse guard, appointed by the superintendent under proper legal authority and whose services were paid for by the county, who shot a convicted misdemeanant who was attempting to escape from the workhouse, the proof showing that the superintendent was not present when the shooting was done and knew nothing of it until after it had occurred; the opinion was based on the well-settled rule of law that a public officer is not responsible for the wrongful acts of a subordinate employed by him under proper legal authority, unless he has directed such an act to be done, or is guilty of negligence in respect of same, which directly and proximately contributes to the injury. It was further held that the guard was in no sense a servant of the superintendent, and the rule of respondeat superior did not apply. The court said: "In all of the cases it was held that public officers are not liable for the negligence of their subordinate officers, whether appointed by them or not; that the rule of respondeat superior does not apply. They are liable for their own negligence, and liability for that of their inferiors only arises where the latter are their personal agents or private servants. The exemption of a public officer from liability for the negligence of a subordinate official is said to rest on reasons of public policy."

Nor were the sureties on the official bond of the superintendent liable on such bond for the shooting of the convict by a guard legally appointed by the superintendent and paid by the

county, as the superintendent was not present when the shooting was done and knew nothing of it till after it had occurred. Ibid.

And in Martin v. Moore (1904) 99 Md. 41, 57 Atl. 671, where the superintendent of a house of correction had ordered the plaintiff punished for a violation of the rules of the institution, the action was properly dismissed as to him, even though the punishment was inflicted in a malicious, wilful, and excessive manner, as there was no evidence to show that the superintendent was responsible for the wrongful act.

And a complaint in an action against the warden and principal keeper of a prison, by a prisoner, to recover for cruel and unusual and unlawful punishment inflicted, fails to state facts sufficient to constitute a cause of action, where the punishments described in the complaint as having been inflicted seem to have been authorized by statute, if, in the opinion of the warden, it was deemed necessary in order to produce entire submission or obedience of the convict, and there was no allegation in the complaint that the acts done by the defendants were not in accordance with the regulations of the superintendent, or that they were not necessary for the proper punishment of the plaintiff, or to secure submission or obedience upon his part, or that they were not administered in accordance with the legal regulations upon that subject. Wightman v. Brush (1890) 32 N. Y. S. R. 78, 10 N. Y. Supp. 76.

So, also, in Rose v. Toledo (1903) 24 Ohio C. C. 540, it was held that the superintendent of a city workhouse was a public officer, and in his official capacity was authorized to make reasonable rules and regulations for the government of the prison and to inflict reasonable punishments for their violation, and, in the absence of a showing of malice or intent to injure, could not be held liable for injuries to a prisoner confined in a dungeon of the workhouse for violation of the rules of the institution.

And where the plaintiff was arrested by policemen and confined in

jail, and later was removed by the janitor to a filthy, unsanitary cell, in which he suffered bodily pain and affliction, he could not recover for such injuries from the policemen or the city marshal, who maintained absolute control over him, in the absence of evidence that either of the defendants were responsible for the condition of the cell, or that they placed the prisoner therein or knew that he was confined in the cell in which this condition is shown to exist. Bishop v. Lucy (1899) 21 Tex. Civ. App. 326, 50 S. W. 1029.

IX. Of officers in charge of prisoners for injury inflicted by one prisoner upon another prisoner.

The general rule gathered from the cases which have considered the question as to the liability of an officer in charge of a jail or prison for an injury inflicted by one prisoner upon another prisoner is that, in order to hold the officer liable for such injuries, there must be knowledge on the part of such officer that such injury will be inflicted or good reason to anticipate danger thereof, and negligence in failing to prevent the injury.

Thus, a sheriff is not responsible for a fatal assault committed by a convict on a prisoner committed to the county jail to await the action of the grand jury, where the sheriff was not bound to anticipate the assault, and did not know of any trouble in the jail. Gunther v. Johnson (1899) 36 App. Div. 437, 55 N. Y. Supp. 869.

And one who, without the knowledge of the chief of police of the city, was placed in a prison cell with an insane prisoner, who had also been placed there without the knowledge of the chief of police, and who was injured by the insane prisoner, could not recover from the chief of police for a murderous assault committed upon him by the insane prisoner. Stinnett v. Sherman (1897) Tex. Civ. App. -, 43 S. W. 847. The court in the instant case held that duties imposed by a city ordinance upon the chief of police, that he should keep the prison in a cleanly and wholesome condition, and safely keep all prisoners confined

therein, were duties owing to the public, and not to citizens in their distributive and individual character, and for failure to perform the duties imposed by this ordinance the chief of police was responsible to the city,the public; but for such nonfeasance he could not be held responsible in damages to the individual citizen. It was pointed out that, if the chief of police was guilty of any negligence, it consisted in his failure to be at the prison in person or by deputy, and to prevent the policeman from placing the injured party in the cell with the insane prisoner, and that the only legitimate complaint which could reasonably be made against him would be the neglect of a public duty. The court said: "We do not wish to be understood as announcing the doctrine that the keeper of a prison may negligently allow a prisoner actually in his custody to be unnecessarily injured, without incurring personal liability for damages sustained by such person. That proposition is not necessarily involved in this case. The chief of police did not have actual custody of appellant, in person or by deputy, and did not know that either of the parties was in the calaboose at the time the injury was inflicted. There was no such actual relation between appellant and appellees as would create an affirmative obligation on the part of appellees towards appellant as an individual to protect him from assault by other prisoners."

And in Riggs v. German (1914) 81 Wash. 128, 142 Pac. 479, although the sheriff knew of the existence of a "kangaroo court" in the jail, it was held that he was not liable for injuries inflicted upon a prisoner, as there was no evidence that he knew or had reason to know that the prisoners contemplated an assault upon the plaintiff, and that, having such knowledge, he took no steps to prevent it.

However, a sheriff was held liable in Hixon v. Cupp (1897) 5 Okla., 545, 49 Pac. 927, for injuries inflicted by another inmate of the jail, on one confined therein, in subjecting him to a penalty of corporal punishment because of his refusal to pay a fine

assessed by a "kangaroo court" established by the inmates. The decision as to liability was predicated upon the fact that "evidence was adduced to the jury to show that the sheriff knew that it was the custom of the prisoners confined in the jail under his charge to assault and beat prisoners brought to such jail, after pretended or mock trials, and that he failed to use such means as were at his command to prevent such acts." The decision in this case was further based on the fact that the sheriff was under a statutory duty to keep the peace in the county, which included the jail.

The liability of the sureties on the sheriff's bond in such a case is a joint one with the sheriff, and they may be sued, together with the sheriff, directly upon his bond, for such nonfeasance or misfeasance in office, and they will be liable, together with him, thereon. Ibid.

And a sheriff is liable in damages on his official bond to a prisoner in his custody for injuries inflicted by an attack upon him with a deadly weapon by an insane suspect whom the sheriff's deputy negligently confined in the same room with the injured person without searching him for weapons. Kusah v. McCorkle (1918) 100 Wash. 318, L.R.A.1918C, 1158, 170 Pac. 1023. The court in the instant case was of the opinion that it was a question for the jury as to whether the deputy was negligent in keeping the prisoners together in one common room of the jail, and in failing to search the insane suspect for weapons, who had been declared to be mild and inoffensive and showed no violent traits or tendencies prior to the assault on the plaintiff.

In Kusah v. McCorkle (Wash.) supra, it was held that the injured prisoner was not negligent in failing to see that an insane suspect confined in the same room with him was searched to determine that he had no weapons, so as to preclude holding the sheriff liable in case he is injured by such weapon in the hands of the suspect.

In Moxley v. Roberts (1897) 19 Ky. L. Rep. 1328, 43 S. W. 482, in an action against a town marshal and the bonds

men on his official bond, the court held that an instruction asked for by the plaintiff, which directed a finding for the latter, if he, the plaintiff, was injured by an assault by fellow prisoners and the marshal failed to furnish medical treatment, was properly refused, as it was on the theory that the officer was liable irrespective of whether or not he knew of the injury.

X. Photographing, taking of Bertillon measurements, etc.

In State ex rel. Bruns v. Clausmeier (1900) 154 Ind. 599, 50 L.R.A. 73, 77 Am. St. Rep. 511, 57 N. E. 541, the court held, in an action against a sheriff's bond and his bondsmen, that a sheriff may lawfully take the photograph and measurements, weight, name, residence, place of birth, occupation, and personal characteristics of an accused person committed to his custody for safe-keeping, if, in his discretion, it is necessary to prevent his escape, or to facilitate his recapture in case he should do so.

And the official bond of a sheriff is not liable for his act in sending out a photograph and description of a person committed to his charge, together with a statement of the accusation against him, in such a manner as to be libelous. Ibid.

v. Kuhne

However, in Hawkins (1912) 153 App. Div. 216, 137 N. Y. Supp. 1090, 28 N. Y. Crim. Rep. 422, affirmed in (1913) 208 N. Y. 555, 101 N. E. 1104, a police captain was held civilly liable for an assault committed in having a prisoner photographed who was being detained upon a charge of felony and against whom the charge was subsequently dropped.

And in People ex rel. Gow v. Bingham (1907) 57 Misc. 66, 107 N. Y. Supp. 1011, it was held that the act of police officers in taking a photograph and Bertillon measurements of one indicted, but who had not been arraigned or convicted, was subversive

of personal liberty and unauthorized by statute, and every person concerned therein was not only liable to a civil action for damages, but to criminal prosecution for assault.

XI. Miscellaneous.

In an action against a private corporation for the death of a convict in the state penitentiary who was killed as a result of coming in contact with an electric wire leading into the penitentiary, which wire, through the negligence of the defendant corporation, had become crossed with one of the latter's drooping wires so as to cause the other wire to be overcharged with electricity and fall to the ground within the penitentiary, the court held that the intestate's administrator was precluded from a recovery on the ground of the contributory negligence of the intestate, who, although a convict, and called upon by one of the prison guards as an expert electrician to remedy the dangerous situation of the fallen wire, attempted to handle the wire in his woolen cap, although he was not compelled to do so by the guards, who in fact left him free to handle the situation as he saw fit, and warned him of the danger of handling the wire in the manner in which he did. Capital Gas & E. L. Co. v. Davis (1910) 138 Ky. 628, 128 S. W. 1062. It will thus be seen that the instant case is authority for the point that, even though the labor of a convict is of necessity of a compulsory nature, and he is more subservient to those in authority over him than is a servant to the master who employs him, yet, if he is told by the guard to execute a certain piece of work the manner of execution of which is left to his own judgment, the question as to his contributory negligence in performing the work must be determined by the rules of law that would apply to an ordinary servant or laborer in the same state of case. R. P. D.

Auctions, § 7-effect of by-bidding.

2. Membership in a lodge undertaking to sell real estate at auction does not deprive one of the right to bid for property offered at the sale.

Auctions, § 4-accepting bid without opportunity for further bidding.

3. One to whom property offered for sale at auction is knocked down cannot avoid his bid because the auctioneer was signaled to accept it when it raised the bid of a foreign-looking gentleman who was suspected of being an objectionable purchaser, and who was thereby prevented from making a higher bid.

Auctions, § 7- "by-bidder" defined.

4. A "by-bidder" is one employed by a seller or his agent to bid on the property with no purpose to become a purchaser, so that the bidding thereon may be stimulated in others who are bidding in good faith, where he is safe from risk because of a secret understanding that he shall not be bound by his bids.

conducting an auction sale and a bidder for property, that he shall have the property at a specified price regardless of the price bid, does not avoid a sale to another of other property for which there was bona fide competitive bidding, where there is nothing to show that such person was influenced in his action by the bidding for the property to which the understanding related; at least, where the owner has reserved the right to reject any and all bids.

Auctions, § 4- rebutting presumption of influence of fictitious bids.

6. The presumption that when a tract is divided into lots, and auction sales of them made at the same time and as parts of the same transaction, bidders on the last lots are influenced by fictitious bids upon the lots previously sold, may be rebutted by the facts and circumstances. [See 2 R. C. L. 1130.] Auctions, § 7-rebutting presumption of imposition from by-bidding.

7. In case of by-bidding, in the sale of lots in a subdivision of real estate, upon lots sold before the one knocked off to a complaining purchaser is sold, the presumption that he has been imposed upon may be rebutted. [See 2 R. C. L. 1130.]

The facts are stated in the opinion Messrs. C. Fred See, Jr., and S. S. Willis for appellants.

Messrs. A. O. Carter, George B.

of the court.

Martin, and John L. Smith, for appellee:

By-bidding and puffing are bidding