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. (213 Ky. 533, 281 8. W. 500.) H. C. OSBORN et al., Appts., V. APPERSON LODGE, FREE AND ACCEPTED MASONS, NO. 195, of Louisa. Kentucky Court of Appeals — March 12, 1926. (213 Ky. 533, 281 S. W. 500.) Auctions, § 7-effect of by-bidding. 1. Secret by-bidding upon a single parcel of real estate, which is all that is offered at an auction sale without reserve, gives the purchaser the absolute right to repudiate his contract. [See annotation on this question Auctions, §4 of lodge property right of member to bid. 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. [See 2 R. C. L. 1128.] Auctions, § 4 understanding that property shall go for certain price - effect. 5. A secret agreement between one beginning on page 122.] 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. a 6. The presumption that when 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.] APPEAL by plaintiff's from a judgment of the Circuit Court for Lawrence County in favor of defendant in an action brought for the cancelation of certain auction bids and for a return of initial payments made on certain lots. Affirmed. The facts are stated in the opinion of the court. Messrs. A. O. Carter, George B. Martin, and John L. Smith, for appellee: By-bidding and puffing are bidding by one who has no intention to buy, but is employed by the vendor or his agent to increase the price by fictitious bids, thereby increasing the competition among the bidders, while he himself is secured from risk by a secret understanding with the vendor that he shall not be bound by his bids. Story, Sales, § 482; Veazie v. Williams, 8 How. 134, 12 L. ed. 1018; 2 Kent, Com. p. 537; 2 R. C. L. 1128; 6 C. J. 832, 833; Burdon v. Seitz, 206 Ky. 336, 267 S. W. 219. A joint owner of land sold at public sale may enter into agreement with bidder, to which other joint owners did not consent, to purchase land jointly with bidder for a price not in excess of a certain sum, without becoming a by-bidder so as to invalidate a sale to another bidder. Manuel v. Haselden, 206 Ky. 796, 268 S. W. 554. Where a large tract of land is cut up into lots, and sales of lots are made at the same time as parts of the same transaction, there is a presumption that the last bidders are influenced and injured by fictitious bids upon lots previously sold, and they may avoid the sale without further proof that they are influenced and injured, if there is no evidence tending to control or rebut such presumption. But this presumption may be rebutted, and if it is shown that the by-bidding had no effect upon the purchaser's bid, the latter cannot avoid his contract. 2 R. C. L. p. 1130, ¶ 15. Turner, C., filed the following opinion: Prior to May, 1924, appellee for a number of years had been the owner of a plot of ground, something over 200 feet square, in the residential section of Louisa. Some time before that it appointed a committee of three of its members to take charge of this property and employ some real estate agency to sell the same. The property was bounded on the north, east, and south by wide, well-paved streets and pavements, as well as curbing and guttering; but the street on the west was not so paved and was only about half as wide as the other streets. A 12-foot alley, running from east to west, was put through the center of the property, and the plot north of that alley was subdivided into five lots facing upon the wide street at the north, and each of them were 41.74 feet wide and 98.35 feet deep. The plot south of the alley was similarly divided into five lots of approximately the same dimensions. Beginning at the northeastern lot on the northern plot, the five lots north of the alley were numbered 1, 2, 3, 4, and 5, and the five lots south of the alley beginning at the east were numbered 6, 7, 8, 9, and 10. So that there were four corner lots in the division, 1 and 5 on the north of the alley and 6 and 10 on the south of the alley, and three inside lots on the north of the alley facing on Madison street at the north, and three inside lots south of the alley facing on Franklin street at the south. lodge entered into a contract with a The committee appointed by the real estate agency which, after the subdivision of the lots as stated, advertised a sale for the 14th of May, 1924, at which sale the ten lots in the aggregate brought something more than $28,000. At that sale appellant Osborn became the purchaser of the corner lot No. 6 south of the alley at $3,650, as well as the inside lot adjoining it, No. 7, at $2,825; and the appellant Ethel R. See became the purchaser of lot No. 2 adjoining the corner lot No. 1 north of the alley at the price of $2,825. The contract between the committee of the lodge and the real estate agency stipulated that the lodge was to receive in any event $25,000 net for its property, and that otherwise it reserved the right to reject any and all bids. This announcement was made at the sale. The corner lot No. 1 at the northeast was first offered for sale and brought $3,550, and then the next lot, No. 2, an inside lot next to No. 1, was offered, and being bid to only $2,200 was taken down. Then it was determined by those in charge of the sale they would first sell the four corner lots before offering any of the inside lots, and corner lot No. (213 Ky. 533, 281 S. W. 500.) 5 at the northwest was next offered and brought $2,950. Next corner lot No. 10 at the southwest was offered and sold at $2,850, and then corner lot No. 6 at the southeast was offered and bought by appellant Osborn at $3,650. Then lot No. 7, adjoining corner lot No. 6 so purchased by Osborn, was offered, and he became the purchaser of that at $2,825. After the sale of lot No. 7 to appellant Osborn, the inside lots numbered 4, 3, 2 on the north of the alley were sold in the order named, and appellant See became the purchaser of lot No. 2, and thereafter inside lots Nos. 9 and 8 south of the alley were sold in the order named. As has been stated, the contract between the owner and the real estate agency stipulated that the owner was to have $25,000 net for its property, and accordingly when the sale was begun it was definitely stated to the assembled crowd that the seller reserved the right to reject any and all bids. This appears to have been necessary under the terms of the contract. After the four corner lots and lot No. 7 south of the alley had been sold for an aggregate of $15,825, it was apparent that if the remaining five inside lots could be made to average $2,500 each the sale would be a go, and a profit would be left, over and above expenses, for the real estate agency. Accordingly, after the sale of the first five lots, it was agreed that the purchasers of the three other corner lots, other than Osborn, who had already purchased the inside lot adjoining his corner lot, might each have the lots adjoining the corner lots so purchased at $2,500, but that such lots must be publicly sold and the purchasers of the respective corner lots should be the highest bidders at the sale of such adjoining lots, but would be required only to pay $2,500. This offer was taken advantage of by Burchett, the purchaser of corner lot No. 5, and when inside lot No. 4, which was sold before appellant See became the highest bidder for lot No. 2, was offered, it was necessary for Burchett to bid that lot up to $2,700, at which figure it was knocked off to him, although under his agreement he actually only paid $2,500 for it. This happened after the purchase by Osborn of his two lots and before the purchase by appellant See of her lot, and that appears to be the only distinction between the two cases. The reliance of each of the plaintiffs for a cancellation of their bids, and a return to them of the initial payments made, is wholly upon their allegation that at the sale there was by-bidding and puffing upon the sale of several of the lots at the instigation and procurement of members of the committee, and the real estate agency conducting the sale. Auctions-of lodge property ber to bid. The first specific complaint of misconduct is that Cooksey, a member of the lodge committee who had arranged with the real estate company for the sale, had himself made bids on several lots; but if he, because he was a member of the lodge, might in any sense be said to have had such interest in the property as to preclude him from the right of bidding, under the rule laid down by this court in Manuel v. Haselden, 206 Ky. 796, 268 S. W. 554, he would not have been pre- right of memcluded from the right to bid. Likewise, complaint is made because Cooksey procured a man named Mullins to bid for him on lot No. 7 bought by Osborn, and directed Mullins to bid as much as $2,800 on that lot for him. Mullins in fact bid for him $2,800, and then Osborn bid $2,825; but Mullins was unknown to the real estate man who was conducting the sale, and, Mullins being a man of swarthy complexion and having the appearance of a foreigner, the real estate agent, fearing the effect upon the sale of other lots if such foreigner should buy that one, and being satisfied with the bid of $2,825, indicated to the auctioneer to knock it off, and complaint is made by Osborn of this conduct. The transaction is fully |