arose until he had, by direct action, established his title to the office.
But appellant contends that the rule is a hard one, because it would require the discharged policeman, in case he was denied a recovery merely because the roster was full, to sue every member of the force in order to establish his right to his office. Such is not the result. If only one policeman should be removed, he could sue the new appointee. On the other hand, if several policemen should be removed at one time and the roster thereafter filled, each would have to sue only the new appointees. In no event, then, would it be necessary ever to sue any ne except the men subsequently appointed to complete the roster. Nor will this rule permit the Board of Safety to violate the law and make illegal dismissals. If that board does not fill the roster, the discharged policeman may recover. If it does fill the roster, he may sue immediately. This, in our opinion, is better than to permit the discharged policeman to wait an indefinite time and then recover the full amount of his salary, notwithstanding the fact that his place has been filled by some one else who has performed the duties and received the pay of the policeman discharged. In other words, "he must assert his right to the office and his salary promptly, to the end that upon his restoration to the office, if that should follow a favorable decision, he may perform the duties for which he is to be paid, or the city take such steps as she may legally do in order to avoid further loss." (Gorley v. City of Louisville, 108 Ky., 789; Gorley v. City of Louisville, 104 Ky., 872.) Judgment affirmed.
1. Actions-Ordinary and Equitable-Trial in Lower Court-Con-
sideration on Appeal.-Parties to an action may, under the
Code, try the case as an ordinary action, but when they treat
it as an action in equity in the circuit court it will be so
treated on appeal. Cornett v. Burchfield
.. 357
2. Actions Agreed Settlements-Absence of Fraud or Mis-
take-Duty of Courts. A court of equity, in the absence
of an allegation and proof of fraud or mistake, will not
aid a party to an action to violate an agreed settlement of
a matter in controversy made out of court and which
he voluntarily made with the other parties to the action.
Petry, et al. v. Petry, et al.
Action for Pain and Suffering.-The personal representative
of a person who dies as the result of personal injuries re-
ceived several days before his death has the right to bring
an action for the pain and suffering of the deceased between
the date of the injury and the death, or an action for the loss
sustained on account of the destruction of his power to earn
money occasioned by his death. Bowling Green Gas Light
Co. v. Dean's Extx.
Damages. An award of $6.750 in an action for pain and
suffering, where the deceased lived six days after he was in-
jured, is not so excessive as to justify the conclusion that
it was the result of passion or prejudice. Idem
APPEALS-See County Courts 2, 3.
Former Appeal-Res Judicata-The opinion upon a former
appeal is the law of the case upon a second appeal.
& Co. v. Gilmore & Co ...
2. Finding of Act by Chancellor.-The finding of a chan-
cellor on an issue of fact will not be disturbed upon appeal,
if the truth of the matter is in doubt, and the evidence
in favor of his finding is as strong as the evidence against
it. Gilliam v. Guffy
Appellate Jurisdiction-Sham Plea not Considered-Where
a counterclaim for damages does not state a cause of action,
and it is evident that it is a sham plea filed for the pur-
pose of obtaining jurisdiction for an appeal to the Court
of Appeals, it will not be considered in determining the
amount in controversy. Cumberland Telp. & Telg. Co. v.
639
Judgment for Less Than $200-Dismissal for Want of Juris
diction. In an action against several defendants where the
judgment was several, neither being for as much as
$200, the amount in controversy is not enough to give the
Appellate Court jurisdiction and the appeal must be dis-
missed. Johnson, et al. v. Wilson, et al.
Criminal Law Opinion
The opin-
ion on a former appeal is conclusive not only upon all
matters actually decided, but of all matters presented by the
record and which should have been decided. Gambrel v.
Commonwealth
Defense of Another.-An in-
struction on self-defense and the defense of another is not
erroneous when otherwise proper, merely because it omits
from the instruction directed by this court to be given, after
the words "Then you ought to acquit the defendant upon the
ground of self-defense," the words "Or the defense of another
and apparent necessity therefor." The jury being authorized.
to acquit the accused at all events it is immaterial that one
of the grounds upon which they could do so was omitted.
Idem
Trespass to Land Injunction Title Not Involved-
Jurisdiction-Recovery.-Section 950, Ky. Stats., provides that
no appeal shall be taken to the Court of Appeals from a judg-
ment for the recovery of money or personal property if the
value in controversy be less than $200.00. In cases where the
only purpose sought is an injunction this court has jurisdic-
tion. Held in an action for trespass where the plaintiff seeks
to recover $179.20, the value of timber cut from land in which
an injunction was obtained, the title to the land not being in-
volved, this court has no jurisdiction of an appeal from the
judgment of the lower court. Sackett v. Creech, et al
Attorney and Client-Compromise Agreement After Judgment--
Claim as to Fee.-In an action against a book company for the
violation of its contract with the State, a judgment for $10,-
000 was recovered, but a compromise was effected with the
company by the School Superintendent and his attorney by
which a note of $2,200 was accepted in satisfaction of the
judgment, and at the suit of the successor of the school super-
intendent that compromise was set aside and canceled, and
the book company compelled to pay the $10,000 judgment.
Held, that in an action to recover a fee for his services in the
original action, the attorney for the superintendent was not
entitled to any fee. When he permitted his client to barter
away the judgment for a paltry sum, less than one-fourth of it,
ATTORNEY AND CLIENT-Continued-
upon terms of uncertainty as to payment, he was himself
guilty of neglect of duty, and the lower court should have in-
structed the jury in accordance with this view of the law.
County Board of Education of Mercer County v. Rankin.. 324
2. Attorney and Client-Disclosing Conversations-Relative
Rights. The authorities seem to support the principle that
it is the right of the client to object to his attorney relating
any conversation had between them, but that the attorney
can not claim any such privilege unless the client objects.
Natlee Draft Horse Co. v. Cripe & Co., et al.
1. Banks and Banking-Notes Pledged as Collateral-Every pre-
sumption is in favor of the validity of notes pledged as collat-
eral for the payment of a debt due a bank. American Na-
tional Bank v. Minor & Son ....
Same-Rights of Parties-Absence of Fraud-There being
neither fraud nor mistake shown in the transaction and a
bank's rights being measured by the information it had at the
time certain notes were pledged it as collateral, the contract
must be enforced as written, for the bank's right to make
such a contract can not be seriously questioned. Idem ... . 792
3. Applying Proceeds of Collaterals.-The consideration being
sufficient a bank can not be denied its right to apply the pro-
ceeds of notes filed with it as collateral, unless it is shown
that it did not became the holder thereof in due course.
Idem
Bank's Interest in Pledged Collaterals -The status of a
bank's claim to an interest in notes filed with it as collateral
is fixed and determined by the information which it had con-
cerning said notes at the time they were pledged to it, and
it can not be prejudiced by acts of other parties of which it
had no knowledge. Possession of a note is prima facie pre-
sumption of ownership. Idem
Bill of Exceptions-Dismissal of Action.-Where an action was dis-
missed and there is no bill of exceptions showing why it was
dismissed, the action of the trial court will be presumed to
have been correct. Hart's Adme v. Louisville Ry. Co......
1. Bills and Notes-Action on
Note-Consideration-Fraudu-
lent Purpose.-This is an action by a son, Virgil Barton,
against his father, Joshua Barton's administrator, to recover
on a note held by him against his father for $8,000 which he
BILLS AND NOTES-Continued-
claimed his father gave him for work and for managing his
farm for eight years prior to his death at $1,000 per year. Held,
the evidence shows the note was executed when Joshua Barton
was in embarrassed circumstances, and there was more evi-
dence to the effect that it was executed for the purpose of
giving the members of the family of the decedent an advan-
tage over his creditors than there was to support the issue
submitted to the jury. The note stated that the consideration
was for eight years' service from 1898 to 1906, which would
make $1,000 per year, and besides this appellant was furnished
with food supplies for himself and family. If appellant worked
the farm for a part of the crops until 1906, as shown by the
testimony, the note was given without any consideration. Bar-
ton v. Barton's Adm'r, et al.
Common Law Issue-Trial by Jury.-Appellant has no right
to complain because the case was transferred from the equity
to the common law docket to be tried by a jury. It was done
on his motion. The exceptions to the report of the commis-
sioner allowing the note raised a common law issue which
should have been tried by a jury, which was done. Idem ..... 487 ́
Children-Employment in Violation of Statute-Certificate.-
Sub-section 11, section 331a, Kentucky Statutes, providing
that no child under sixteen years of age shall be employed at
sewing belts, &c. absolutely prohibits the employment therein
designated, and the certificate provided for in the other sub-
sections will not authorize the employment of any child under
sixteen years of age in any of the capacities enumerated in
said sub-section. Casperson v. Michaels, et al.....
Purpose of Statute.-The purpose of the statute was to protect
children not only from the dangers necessarily incident to
their employment, but from injuries that might resu!. from
their own carelessness and childish acts. In other words the
purpose of the statute was to prevent their being exposed to
to danger. Idem
Liability of Employer.-Plaintiff in violation of the statute
was employed to work at a mangle in a laundry. She was
standing by the mangle waiting for the signal to commence
work. She placed her hand near the driver at the rear of the
mangle, and her hand was caught and injured. Held, that it
is immaterial that she was not actually engaged at work at the
time, or that she placed her hand on a part of the mangle
where she was not required to work, as the statute was de-
signed to prevent such an accident, and her employment in
violation of the statute was the proximate cause of the injury.
Idem.
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