(248 S.W.) the liens of third persons, while section 2317, giving a superior lien for not exceeding one than 11 months, applies to all other character year's rent, which has not been due for more of claims, so that the lessor of coal lands is entitled to a lien for the royalties accrued within 11 months before his action was brought, where no other valid lien against the property had been allowed. ty. Appeal from Circuit Court, Letcher Coun trustees refused to confirm the appointment | ceeding one year's rent as against all other of Steward and the other teachers, it is liens, provided the same is sued out in 120 doubtful, even if the Legislature had made a days from the time the rent is due, applies to specific appropriation for the payment of the debts of the institution, whether Steward's claim would be regarded as a valid debt, and therefore payable out of the appropriation. But the case before us is all the stronger. The language of the act in question is, "And to said institution an annual appropriation of $15,000.00 for the support and maintenance thereof." It will thus be seen that the act not only makes no specific appropriation for| the payment of debts, but contains no lanAction by the Caudill Coal Company against guage even suggestive of any intention on the part of the Legislature to apply the sums the Solner Mining Company and others, to appropriated to any such purpose. On the cancel a lease and to recover royalty demands contrary, the only appropriation was made due thereunder, in which the Maynard Coal for the support and maintenance of the in- Company intervened, claiming a lien. From stitution during the year in which the appro-and of intervener as ordinary claims, but a judgment. allowing the claims of plainti priation was made, thus showing that the denying the liens asserted by them, plaintiff purpose of the act was to provide for future and intervener appealed. Judgment reverssupport and maintenance, and not past sup-ed on appeal of the plaintiff, and cause report and maintenance. That being true, it manded. necessarily follows that if any portion of the appropriation could be used for the payment of Steward's claim, other portions could be used for the payment of other claims of like character, and the purpose of the Legislature entirely defeated. As the payment of Steward's claim was not one of the purposes for which the appropriations were made by the act of 1922, he should not have been granted the relief given by the judgment. Judgment reversed, and cause remanded, with directions to dismiss the petition. J. B. Snyder and H. C. Gillis, both of Williamsburg, and R. Monroe Fields, of Whitesburg, for appellants. Postlewaite & Martin, of Columbus, Ohio, for appellee. MCCANDLESS, J. In a suit in the Letcher circuit court, the Caudill Coal Company set up a lease contract between it and one John T. Solon, executed on the day of October, 1918, in which it leased to him certain mining properties including a railway spur and full equipment, and sold to him its stock of goods and other personal prop CAUDILL COAL CO. v. SOLNER MINING erty at its commissary; he agreeing to pay CO. et al. (Court of Appeals of Kentucky. March 13, 1923.) I. Appeal and error 335-Statement naming only nominal party as appellee held Insufficient. 2. Mines and minerals 70(5)-Royalties on coal mined by lessee are rents. a royalty of 25 cents a ton on the coal produced, settlement to be made on the 10th of each month for the coal produced in the preceding month. A certain minimum of monthly production was provided, beginning January 1, 1919, this minimum being increased at subsequent times therein specified. The lease contract was assigned by Solon to the Solner Mining Com tions. Where an intervener appealed from the judgment denying a lien claimed by him, his statement, naming as appellees the defendant "et al." and naming as appellants the plaintiff pany, which assumed his liabilities and obliga"et al." was insufficient, where the defendant It further appears that the Caudill was only a nominal appellee, and the contro-Coal Company had ordered a driving machine versy was between intervener and plaintiff, so and a hauling motor at the price of $10,000, that intervener is entitled to no relief under but had not paid for them, and the Solner that statement. Mining Company took them over and paid the purchase price. The petition alleged a breach of a number of the provisions of the contract, including a dissipation of the property by the Solner Mining Company and its insolvency, and asserted that it had failed to produce the minimum quantity of coal, and was in arrears in this respect in the amount of tons for the 11 months next precoding, and in the amount of tons minimum for the 4 months immediately preKy. St. § 2316, giving the landlord a supe- ceding; that at 25 cents per ton its royalties rior lien on the tenant's property for not ex- on such production would have amounted Royalties contracted to be paid by the lessee to the lessor for the use of coal property are regarded as rents, and no attachment or distress is necessary to create a lien therefor, when suit was filed. 3. Mines and minerals 70(5)-Priority of statutory lien for rent for past four months applies to liens of third parties. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes to the sums of $13,860.40 and $7,112.60, re- Company is not the appellant, and the words spectively. It sought a cancellation of the "et al." are not sufficient to so constitute the lease contract and settlement of the affairs Maynard Coal Company, but, as the latter of the defendant as an insolvent corpora- is specifically named as appellant in the tion and a lien on all of its effects to secure body of the statement, this may be sufficient it in the payment of the unearned royalties. in that particular. The Solner Mining ComThe defendant filed no answer, and default pany is named as appellee in the caption, and judgment was taken in accordance with the while it is such, it is taking no part in the prayer of the petition. It further appears contest and is only a nominal party, and, that on the 4th day of March, 1920, the Sol- though its name is followed by the words ner Mining Company executed a mortgage on "et al.," it is uniformly held that in such a the two machines above mentioned to the case the appeal will be treated as if prayed Maynard Coal Company to secure it on a against the party first named only. It folpre-existing debt of $6,000. This mortgage lows that in such case the Caudill Coal Comwas filed for record on the 20th day of March pany would not be affected by this appeal. and recorded on the 30th day of March, 1920. Matney v. Edmonds, 179 Ky. 243, 200 S. W. The petition above alluded to was filed on 365; Brodie v. Parsons, 64 S. W. 426, 23 the 28th day of March, but made no reference Ky. Law Rep. 831; Com. v. Columbia Trust to the Maynard Coal Company's claim. At Co., 162 Ky. 825, 173 S. W. 386. It later, on the July term of court, the Maynard Coal the 19th day of September, 1921, filed an Company filed an intervening petition, setting independent appeal on the same record and up its claim and seeking the enforcement of in this the Maynard Coal Company might this lien, but no notice was taken of it by have prayed a cross-appeal, but did not, the Caudill Coal Company until January 3, and, as it appears the judgment complained 1921, at which time it filed an answer, attack- of was rendered on January 12, 1921, it is now ing the conveyance for several reasons. This too late for it to amend its original stateanswer was taken as controverted of rec- ment or to seek a cross-appeal in the second ord, and, over the objection of the Maynard case. As the only contest was between it Coal Company, the case was submitted. It and the Caudill Coal Company, it cannot be had also filed its claim asserting its lien with granted any relief. the master commissioner, to whom the case had been referred for a settlement of the affairs of the defunct corporation. As to appeal of Caudill Coal Company: [2] In this state royalties contracted to be paid the lessor for the use of coal property are regarded as rents (Saulsberry v. Saulsberry, 162 Ky. 486, 172 S. W. 932, Ann. Cas. 1916E, 1223), and no attachment or distress was necessary to create a lien when suit was filed (Wender Blue Gem Coal Co. v. Louis The master commissioner allowed the claims of plaintiff and the Maynard Coal Company as ordinary claims, but denied the liens asserted by them. Exceptions were filed by each, but overruled by the court, and the master commissioner's report confirmed. ville Property Co., 137 Ky. 352, 125 S. W. Separate exceptions were taken, and inde- | 732). pendent appeals have been prosecuted to this court. A number of other questions were raised, but, in view of the conclusions we have reached, it is deemed unnecessary to enumerate them. The appeal of the Maynard Coal Company was filed May 7, 1921, and its statement reads as follows: Court of Appeals of Kentucky. The appellant is the Maynard Coal Co. No summons or warning order is desired. J. B. Snyder, Williamsburg, Ky., [3] By the provisions of section 2316, Kentucky Statutes, the landlord is given a superior lien on the tenant's property for not exceeding one year's rent, as against all other liens, except such as were created before the property was moved on the leased premises, provided the same is sued out in 120 days from the time the rent is due. Section 2317, Kentucky Statutes, gives a superior lien on the tenant's property for not exceeding one year's rent due or to become due, which had not been due for more than 11 months. The construction given these statutes in Petry v. Randolph, 85 Ky. 354, 3 S. W. 420, is that the first applies to liens of third parties, while the latter applies to all other character of claims. It follows that if the lien of the Maynard Coal Company had been allowed, the CauCo.perior lien as against it, on all property owndill Coal Company would have had a sued by the Solner Mining Company and moved on the leased premises prior to the execution of its mortgage, to the extent of $7,112.00, the amount of the rent which had not been due for exceeding 4 months; but, inasmuch as the Maynard Coal Company was not al [1] It is evident that the caption in this appeal is confused with those of the pleadings in the lower court. The Caudill Coal (248 S. W.) duct of accused 351 (2)-Evidence of conwhen arrested held incom lowed a lien in the lower court, and the effect have some dental work done and his nervousness of its appeal is to affirm the judgment of might have been attributed to that. that court, and there being no other lien 5. Criminal law creditors, it results that the Caudill Coal Company has a lien under section 2317, supra, for all the rents which had not been due for more than 11 months at the time suit was filed, or for the gross amount of $13,860.40, and that this lien should prevail over all ordinary claims. Wherefore judgment is reversed on the appeal of the Caudill Coal Company against the Maynard Coal Company, and cause remanded, for proceedings consistent with this opinion. Evidence that accused when arrested was SO nervous that he exclaimed, "Ain't this hell?" is incompetent to show guilt, since an arrest for crime would naturally make a person nervous, especially if he knew himself to be innocent. SPRINGS v. COMMONWEALTH. (Court of Appeals of Kentucky. March 13, 1923.) 1. Criminal law 1036(1), 1054 (1)-Competency of evidence not objected to or excepted to cannot be reviewed. The admission of evidence as to trailing by a bloodhound was not reversible error, even if the evidence was incompetent, where no objection was made at the trial and no exception saved to its admission. 2. Arson 37(1)-Evidence held insufficient to sustain a conviction. In a prosecution for wrongfully burning a barn, circumstantial evidence as to trailing by a bloodhound to defendant's premises, where a tenant who confessed he had visited the barn also lived, and as to tracks in two fields across which the bloodhound went but which were show motive. In a prosecution for wrongfully burning a barn, evidence that a month or more before the barn was burned accused, while talking about a raid previously made in the neighborhood, stated that if the party who raided the neighbor were to treat him that way he would get even with them, was incompetent to show motive, even though thereafter the premises of defendant were raided and prosecuting witness was delegated by the officer to guard a still taken therefrom; it appearing that defendant thanked prosecuting witness for advice given a member of his family on that occasion and remained on friendly terms with him. 4. Criminal law 351(1)-Evidence as to nervousness of accused when bloodhound was brought held incompetent. In a prosecution for wrongfully burning a barn, testimony by a witness that, when the bloodhound was brought to town to track the guilty persons, accused displayed nervousness, was incompetent; it appearing that accused at the time had accompanied his wife to town to The indictment charged that he acted with one Fred Moneymaker, a tenant of his, in burning the barn, and it appears from the record that Moneymaker was indicted, tried, and convicted of the crime several months prior to the indictment and trial of the appellant, against whom the grand jury failed at two terms of the court to return an indictment. The evidence against the appellant was purely circumstantial; the whole being furnished by the trailing of a so-called blood. hound, the discovery of unidentified foot tracks, testimony as to the appellant's conduct upon the arrival at Kuttawa of the hound which did the trailing, and of a conversation he had with the owner of the barn several months before the burning of the barn, intended to show a motive for the crime. Time will not be consumed in discussing all of the numerous grounds urged for a new trial and now relied on for a reversal of the judgment. As in our opinion the judgment must be reversed on at least two of the grounds urged therefor, we will in the main confine ourselves to them. They are error of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the trial court: (1) In admitting certain incompetent evidence objected to by the appellant; (2) in refusing an instruction directing the return of a verdict of not guilty by the jury as requested by appellant at the conclusion of the commonwealth's evidence and again at the conclusion of all the evidence. Besides the evidence respecting these tracks and the trailing done by the dog, the commonwealth was permitted, over the appellant's objection, to prove by Robertson a conversation he claimed to have had with the appellant more than a month before the burning of the barn, in which the latter made, as he testified, what amounted to a conditional threat to injure him in his person or property; and also to prove that the appellant appeared to become nervous or embarrassed when the dog of Pigg was taken from the train on the way to Robertson's home, and that such was likewise his demeanor when later placed under arrest for the burning of the barn. [1] It is insisted for the appellant that all evidence as to the trailing done by the dog was incompetent and should have been excluded; it being contended that the proof introduced respecting the pedigree, training, and experience of the animal failed to show him qualified under the rules announced by this court to perform the service it was at. tempted to have him render. If the evi It appears from the bill of evidence found in the record that Robertson's barn was burned about 3 o'clock a. m. May 28, 1921. The fire was evidently of incendiary origin. By 10 o'clock a. m. one Bob Pigg of Water Valley, Ky., in obedience to a telegram from Robertson, arrived at the latter's home with a 10 year old dog, claimed to be a bloodhound, which with some hissing from Pigg was put to smelling the ground at and around the burned barn. After barking at the corner of the barn, the dog began trailing in Robertson's pasture down a fence until he arrived at a field which had been plowed and dragged or rolled with a log. In this field were found the tracks of two men; one set of the tracks appearing to have been made by No. 9% or 10 shoes and the other by No. 7 or 8 shoes. These tracks were followed some dis-dence in question had been objected to by the tance to a point where they turned and came back to a ditch near a fence. There the dog stopped, and was led by Pigg 75 yards away to a gate or steps, by which both passed through or over the fence into a public road greatly traveled and then containing numerous shoe tracks. Upon reaching the road, both Pigg and the dog followed it to a gate between which, and the ditch where the dog had previously stopped, was a small plowed field which was also crossed by tracks similar to those seen in the plowed and logged field; but the tracks disappeared 10 feet from the gate, where the ground seemed too hard for shoes to make an impression, and though Pigg and the dog went from that point by the public road directly to the appellant's home, no other like tracks were found on the way or after their arrival there. Upon reaching the appellant's home, which is a quarter of a mile from Robertson's home and where the barn had been situated, the dog entered the premises, and going first by the house and garage trailed on to the barn, where Moneymaker, the appellant's tenant and the person first indicted and convicted of the barn burning, was found. The tracks did not lead to nor connect with the barn on the one side, nor the house of the appellant on the other, but were confined to two fields about midway between them. None of the tracks referred to were measured, nor were the shoes of the appellant or Moneymaker measured or attempted to be fitted to the tracks. Several witnesses expressed the opinion, however, that the shoes worn by the appellant were of such size and shape as would or might have made the larger tracks, and those worn by Moneymaker such as would or might have made the smaller tracks. appellant on the trial in the court below and an exception taken to its admission, we would under authority of the following cases hold it incompetent: Blair v. Comlth., 171 Ky. 319, 188 S. W. 390; Sprouse v. Comlth., 132 Ky. 269, 116 S. W. 344; Denham v. Comlth., 119 Ky. 508, 84 S. W. 538, 27 Ky. Law Rep. 171; Pedigo v. Comlth., 103 Ky. 41, 44 S. W. 143, 19 Ky. Law Rep. 143, 42 L. R. A. 432, 82 Am. St. Rep. 566. But as the bill of evidence wholly fails to show that the appellant objected to any of the evidence introduced as to the trailing performed by the dog, or as to his want of qualification for its performance, we are not now at liberty to declare its admission by the trial court reversible error. [2] Regarding, however, as admitted the competency of the dog to do the trailing he performed, the evidence furnished by it cannot of itself be accepted as conclusive of the appellant's guilt. On the contrary, as held by the authorities, supra, and all others on the subject to which our attention has been called, evidence as to trailing by bloodhounds of one charged with crime may be permitted to go to the jury for what it is worth, as one of the circumstances which may tend to connect, the defendant with the crime. The evidence in this case of the trailing done by this dog we regard of little, if any, value as tending to show the appellant's guilt, for as Moneymaker, who was first convicted of the burning of Robertson's barn, in testifying on the appellant's trial admitted that he went to the barn alone shortly after 2 o'clock a. m. the morning it was burned for the purpose of taking some corn which he did in fact take and carry away, and that while in the barn he struck a match to see his way, which might have started the fire, it would seem fairly evident that he alone was the party (248 S.W.) trailed by the dog on the morning following | by execute the alleged threat made in the the burning of the barn. His uncontradicted previous conversation as to what he would testimony, if accepted as true, would seem to do if treated as Hunt was. We think the eviexplain the cause of the fire and exonerate dence of the previous conversation between the appellant from any participation in the Robertson and appellant and what occurred burning of the barn; it being his positive during the raiding of appellant's premises statement that he was unaccompanied by the was all incompetent and highly prejudicial. appellant in going to the barn for the corn. It was all too remote and indefinite to show Moneymaker's confession of guilt may also a motive on the part of appellant for the be said to find some support in the conduct of burning of the barn. Moreover, whatever the dog whose trailing led him to pass, after was said by the appellant akin to a threat in a momentary pause, the dwelling house and the conversation was not directed against garage of the appellant and go on to the barn Robertson or any particular individual and where Moneymaker was found, which ended was based upon a condition that did not then the animal's trailing. exist and might never arise; in fact, did not arise in so far as Robertson was concerned, for appellant knew how Robertson became guard over the still and later thanked him for some kindly and valuable advice he gave a member of his family on that occasion, Indeed, Robertson himself testified that his relations with appellant continued friendly and intimate until after the burning of the barn; that they exchanged visits and frequently rode together; and that he had never heard of any complaint from appellant of the part he (Robertson) took in guarding the still for the sheriff. Manifestly, this evidence cannot be tortured into the semblance of a showing of motive for the commission of the crime charged. As the tracks discovered on the morning following the burning of the barn went no nearer the location of the burned barn than the plowed and logged field, and those beyond the latter field went no nearer the appellant's home than the adjoining plowed field, and there was evidence conducing to prove that shoes of the make and size worn by the latter were constantly kept in stock and almost daily sold by a merchant in the nearby town of Kuttawa, no significance can be attached to the fact that the larger of the tracks found might have been made by shoes of the size and make worn by the appellant. have some work done on her teeth, with which she was suffering, and it is as reasonable to suppose that such nervousness as he then exhibited was due to her condition as. some other cause; at any rate, the cause for it is purely speculative. [3] We think the trial court erred to the prejudice of the appellant's substantial rights in admitting evidence of the conversation [4] The evidence regarding the conduct of containing the conditional threat alleged to appellant when he witnessed the arrival at have been made against Robertson by the Kuttawa of the dog, and at the time of his appellant. The conversation occurred a arrest, was also incompetent. It is difficult month or more before the burning of the barn to understand how the witness who testified and while Robertson and appellant were rid- to the appellant's demeanor on the occasions ing in the latter's automobile from Kuttawa referred to could have told what caused his to or near their respective homes. They were, nervousness at either time. The evidence according to the testimony of Robertson, talk-shows he had carried his wife to Kuttawa to ing about a raid that had previously been made in the neighborhood by prohibition of ficers upon the premises of one Hunter, in regard to which appellant, as stated by Robertson, expressed his condemnation of the raiders and in substance said it was dangerous to be raiding for stills and moonshine whisky, and if the parties who had raided Hunter were to treat him that way, he would resent it and not submit to it, and would get even with them; and that if he died others would get even with them. It appears that about a month before Robertson's barn was burned, a raid for prohibition enforcement was made by the county sheriff and posse on the appellant's premises. Robertson happened to be passing by appellant's home at the time and was summoned or deputized by the sheriff to stand guard over a captured still while he and his posse continued their search of the premises. The object in proving these facts and the previous conversation was to show that the duty performed by Robertson in obedience to the command of the sheriff caused him to incur the ill will of the appellant and gave the latter a motive for burning his (Robertson's) barn and there [5] It was testified that his nervousness when arrested was so extreme that he exclaimed, “Ain't this hell?" It would be hard to imagine anything more calculated to make one nervous than to arrest him for a grave crime, particularly if he knew himself to be innocent; and what would be more natural than that he should make some remark expressive of his surprise and resentment because thereof. Obviously, such evidence establishes its own incompetency and should have caused its exclusion. [6] Viewing the evidence as a whole, it was insufficient to require the submission of the case to the jury. The conviction of one charged with crime may be had upon circumstantial evidence alone, when it is of such character as to exclude every reasonable hypothesis of his innocence. Commonwealth v. Hatfield Coal Co., 193 Ky. 229, 235 S. W. 722; Commonwealth v. Skaggs, 152 Ky. 269, |