Central Kentucky Asylum v. Penick, Committee.

2. EXCEPTIONS IN STATUTE-PLEADING.-Where there is a saving, exception, or proviso in the statute which is not in the same section which confers the right, it is a matter of avoidance and defense, and need not be negatived by the plaintiff in his petition.

HENRY & WOODWARD, FOR APPELLANT.

1. Every fact necessary to recover under the statute has been carefully alleged and the language of the statute strictly followed. Where a right of action grows out of a statutory enactment it is sufficient in a suit thereon to follow the language of the statute.

2. The question as to whether the action should have been brought in equity could not be raised by the demurrer; a demurrer will not be sustained if the petition states a cause of action in any form. Hill v. Barrett, 14 B. M., 67; Foster v. Watson, 16 B. M., 387; Robinson v. West, 14 B. M., 3; Landsdale v. Mitchell, 14 B. M., 48.

3. It was not necessary to allege a promise; a statement of facts showing an implied promise is sufficient. 4 Met., 284; 2d Bush, 198; Eversole v. Moore, 3 Bush, 51; Haddix v. Wilson, 3 Bush, 523; 82 Ky., 202 and 293.

B. W. PENICK, FOR APPELLEE.

1. The statute uses the expression "acquires estate which can be subjected to a debt, etc.," thus indicating that the verdict and judgment that the patient was a pauper lunatic is to be considered conclusive, and that only such property or estate as may be thereafter acquired can be subjected for his board, etc., and there is no allegation of any newly acquired estate.

2. A judgment in rem and the sale of the ascertained estate is the only way by which the indebtedness can be measured and ascertained, and the only way in which a judgment against the patient in excess of his estate could be guarded against.

JUDGE HAZELRIGG delivereD THE OPINION OF THE COURT.

The statute providing for the collection of board for the keep of patients committed to insane asylums reads as follows:

"When patients, who have been or may be supported in either of said asylums, have or shall acquire estate which can be subjected to debt, the board of commissioners of such

Central Kentucky Asylum v. Penick, Committee.

asylum, when reliably informed of the fact, is authorized and directed, in every such case, to sue for, in the name of the asylum, and recover the amount of such patient's board, at the rate of $200 per year, or so much thereof as such estate will suffice to pay for the time they shall have been respectively kept and maintained therein, and not otherwise paid for, and by proper proceedings to subject their estates, respectively, to the payment thereof.

"The net sum realized in such suits shall be paid over to the State auditor," etc. (Section 257, Kentucky Statutes.) In this suit by the appellant, Central Asylum, against the appellee, as the committee of one W. W. Anderson, for the board of the latter, it is averred in substance that Anderson, in August, 1893, was found to be of unsound mind and a lunatic, after due inquest held by a jury of Green county, and under proper orders of a court having jurisdiction, was placed in the appellant's care, where he has since been confined and boarded. The amount of board due at the rate of $200 per year is set out, and it is alleged that no part of it has ever been paid.

It is alleged further that the appellee is the regularly appointed committee for Anderson, and that "Anderson has estate which can be subjected to said debt," of which fact the board of commissioners of the asylum, it is averred, "has been reliably informed."

By an amended petition it is further alleged that the defendant, Penick, as committee of said Anderson, "has ample and sufficient means and assets in his hands to pay off the debt sued on." The trial court sustained a demurrer to the petition as amended, and dismissed the proceeding.

Central Kentucky Asylum v. Penick, Committee.

It may be admitted that the pleadings of the appellant are indefinite and unsatisfactory, and that as the purpose of the statute was to reach the estate of the lunatic and subject so much of it as might be sufficient to pay the board account the proceeding ought to have been in rem; still if a cause of action is in fact stated, even though indefinitely and on the wrong side of the docket, a demurrer could not reach the supposed defects.

If it be true that the lunatic has, in the language of the statute and of the petition, "estate which can be subjected to debt," and his committee has in his hands ample and sufficient means and assets to pay off the debt sued on, why may not the plaintiff be entitled at any rate to a reference which will disclose the nature and amount of the estate? The very language of the statutory provision authorizing a recovery in such cases is followed by the pleader, and if other provisions of the law are to be invoked to defeat the claim they must be set up by answer.

The asylum rests its case on the statute we have quoted, and it has often been held that where a saving exception or proviso in a statute is not in the same section which confers the right, it is a matter of avoidance and need not be anticipated by the pleader claiming the benefit of the statute. (Miller v. Jolly, 5 Ky. Law Rep., 327; L. & N. R. R. Co. v. Belcher, 89 Ky, 193; Nichols v. Sennitt, 78 Ky., 630.)

There are found certain distinct sections of the statute on charitable institutions declaring that insane persons are to be deemed paupers, if, according to the finding of a jury, they are unable to pay as much as six months' board in advance, or, if married, be unable to pay said board besides

Wathen v. England, Master Commissioner, etc.

providing others naturally dependent on them (Section 256, Kentucky Statutes). But these provisions when applicable to any given case are matters of defense.

The judgment dismissing the petition is reversed for proceedings consistent herewith.

CASE 88-PETITION EQUITY-January 7.

Wathen v. England, Master Commissioner, Etc.

APPEAL FROM MARION CIRCUIT COURT

1. MASTER COMMISSIONERS AND RECEIVERS-FEES-STATUTORY CONSTRUCTION. Under the provisions of sec. 1740 of the Kentucky Statutes fixing the fees of commissioners and receivers for receiving and paying out money under an order of court, the merc fact that bonds are made payable to such commissioner or receiver does not entitle him to the fees for receiving and paying out the money, unless he does in fact receive and disburse the same; and this was true under the General Statutes as well as under our present statutes.

2. SAME. A commissioner is not entitled to any compensation for extra services in preparing advertisements, etc., of a sale; the fee prescribed by law for making the sale covers all such services.

3. SAME.-The mere fact that a commissioner was in court a number of days after the sale does not entitle him to extra compensation in the absence of anything to show in what the alleged extra labor consisted; it was his duty to report the sale to the court and he was not entitled to any extra compensation therefor.

THOMPSON & MCCHORD, FOR APPELLANT.

1. The fees of master commissioners are fixed by statute; there was no warrant of law for, and no equity in, the allowance to the commissioner of commissions on the $12,000, which was never handled or disbursed by him; and the allowance for fifty-one

Wathen v. England, Master Commissioner, etc.

days extra work at $3 per day was made without any evidence to show that there was any extra labor, and should be disallowed. Outside of these two items the commissioner was well compensated for his services and the auctioneer and all other expenses paid in addition.

EDWARD L. ENGLAND FOR APPELLEE.

1. Under the General Statutes, which were in force when appellee was appointed, $10 was allowed for each sale, and appellee sold 45 horses, to say nothing of the sulkies, harness, etc.; the provisions of the Kentucky Statutes changing the fees of commissioners were adopted in June, 1893, after appellees' appointment, and under the provisions of section 161 of the Constitution they could not affect appellee's right to compensation under the General Statutes. Sec. 161 Ky. Constitution; City of Louisville v. Wilson, 99 Ky., 598.

2. As to the item of $153, for fifty-one days' services, there is no evidence except that of the commissioner, the claim being verified as required by statute and sworn to by appellee on the trial of the exceptions.

3. The bonds were taken payable to the commissioner and he was responsible for every cent thereof, which amounted to over $13,000, and it would be unreasonable to say that he should assume such responsibility without any compensation.

4. Under the circumstances of this case the extra compensation for advertising, etc., and for making out the long and tedious reports that were necessary, should be allowed.

JUDGE PAYNTER Delivered tHE OPINION OF THE COurt.

J. Barney Wathen and J. B. Wathen, Jr., were partners in the business of raising and developing trotting horses. The firm was dissolved and a suit was brought to settle the partnership affairs. The appellee, England, is master commissioner and receiver of the Marion Circuit Court; and an order was entered on the 22d of March directing him to sell the partnership property, which he did on the 31st day of the same month. It consisted in about forty-five horses and some vehicles. The sale was consummated in one day, and the property brought about $14,000. The bonds for the