action was taken by the board, and for that reason, if no other, the judgment should have been affirmed. The judgment of the circuit court is therefore reversed, with directions to dismiss the appeal taken from the license board. MEYER v. LOUISVILLE, ST. L. & T. RY. CO. (Court of Appeals of Kentucky. Dec. 4, 1895.) MALICIOUS PROSECUTION-PROBABLE CAUSE-REPRESENTATION OF ACCOMPLICE. Representations made to prosecutor by a brakeman of the train of which accused was conductor, and which had been repeatedly robbed, that on his being detected by accused while robbing a car he divided the property stolen with accused, shows, as a matter of law, probable cause for the prosecution, irrespective of the truth of such representations. Appeal from circuit court, Jefferson county. "To be officially reported." Action by Arthur Meyer against the Louisville, St. Louis & Texas Railway Company. There was a judgment for defendant, and plaintiff appeals. Affirmed. Simrall, Bodley & Doolan, for appellant. O'Neal, Phelps & Pryor and Helm & Bruce, for appellee. HAZELRIGG, J. The appellant was a conductor on a freight train of the appellee, and was arrested, with two others, composing his crew, at the instance of the company, for feloniously breaking and entering into a railroad car with intent to take, steal, and carry away certain property. After being confined in jail in Louisville about a week, the charge was dismissed by the court for want of jurisdiction, it appearing that the alleged offense was not committed within Jefferson · county. The accused persons were immediately rearrested, and taken to Cloverport, where a trial before an examining court resulted in an order holding the parties over. The chief witness for the commonwealth was one of the crew, who had confessed to the crime before the arrests, and who, in a measure, implicated the appellant and another. This witness failed to appear before the grand jury for two succeeding terms, and the prosecution was abandoned. Thereupon the appellant brought this action for malicious prosecution. A trial resulted in a verdict for $5,000, which, however, was aside by the court, upon the ground that the established and uncontroverted facts showed that there was probable cause for the arrest. Upon a second trial on the same evidence the jury were accordingly instructed to find for the defendant. The complaint of the appellant is that the facts relied on by the appellee as establishing probable cause were all put in issue by the proof, and stood controverted. And it is certainly true that the statements of the witness Allen, upon which the company in the main acted in getting out the warrants of arrest, were contradicted, and, we may assume, shown to be false in fact. Indeed, we may assume that the appellant has shown himself to be entirely free from any suspicious connection with the crime for which he was arrested and held over. But it is also true that these statements of the witness were in fact made to the appellee while it was investigating the thefts committed on its cars under the management of the appellant, and before his arrest was decided on. It is undisputed that thefts were repeatedly committed, and sealed cars broken open on his train; that the witness Allen, a brakeman, and theretofore of good standing, confessed to the company (1) that he and one Roberts broke open the car on one occasion, and (2) that appellant saw them while engaged in getting tobacco therefrom, and (3) that they took the tobacco to the caboose, where appellant was, and divided it among the three, burning the box which contained it in the stove. Undoubtedly, on this state of case, the guilt of the appellant was clearly indicated. Any judicious and prudent person would have been impelled to that belief. Legal advice was thereupon taken, and the arrests followed. There is no pretense of express malice, and to our mind the existence of probable cause is manifest, and the instruction to that effect was proper. Mr. Newell, in his work on Malicious Prosecution (page 14), says: "What facts and circumstances amount to probable cause is a pure question of law. Whether they exist or not in any particular case is a pure question of fact. The former is exclusively for the court; the latter for the jury, when the facts are in controversy, the court instructing them as to the law." The same author (page 267) further says: "In actions for malicious prosecution the real controversy is generally upon the question of probable cause, the want of which is a vital and indispensable element in the plaintiff's case, and as to which the burden of proof is upon him. Whether there was want of such cause is a question of law upon the fact proved. It is to be judged of, not upon the actual state of the case, but upon the honest and reasonable belief of the party that instituted the proceeding complained of." The author (page 269), speaking of the trial of this question by a jury, says: "It seems difficult for them to appreciate, if the plaintiff was really innocent of the charge for which he was prosecuted, that he still ought not to recover. They do not readily comprehend why an innocent man may be prosecuted for a supposed crime or offense, and yet have no recourse against the prosecutor who caused his arrest and imprisonment; and yet the preservation of the peace and the good order of society requires that every innocent man may be compelled to submit to great inconveniences and hardships, rather ships, rather than that citizens should be deterred from instituting prosecutions when there is reasonable or probable grounds to believe in the existence of guilt." This text is supported by numerous cases. In Faris v. Starke, 3 B. Mon. 4, a prosecution was instituted on the confession of an accomplice, with but slight corroborating circumstances, and the court held that, whether probable cause was shown was a matter of law, and determined that such cause did exist in that case. The court said further that "the law, therefore, protects the prosecutor if he have reasonable or probable cause for the prosecution; that is, if he have such ground as would induce a man of ordinary prudence and discretion to believe in the guilt, and to expect the conviction of the person suspected, and if he acts in good faith on such belief and expectation." To the same effect is the case of Rives v. Wood (Ky.) 15 S. W. 131. The authority relied on by counsel for the appellant is not in conflict with that cited by us. On the contrary, the citation from 1 Hill. Torts, p. 438, is directly in line with Newell and other authority cited. That author says: "The question of probable cause in an action for malicious prosecution, more especially when the testimony is conflicting, is a mixed question of law and fact. When the facts are uncontroverted, it is the duty of the judge to apply the law and determine the issue. If there are contested facts, he should charge the jury, hypothetically, upon the state of facts claimed by each party." Upon this authority, therefore, the jury must have been instructed that if, from the testimony, they believed that certain thefts had been traced to the crew of which the plaintiff was a member, and of which he was the foreman, and conductor in charge of the train, and that information of a character to induce a reasonably discreet person to believe it had been given to the defendant, to the effect that these thefts had been committed in the presence of the plaintiff, and the car broken open with his knowledge, and without protest on his part, and the stolen articles divided among the crew, including the plaintiff, then the law presumes the existence of probable cause for the arrest, and they should find for the defendant. There is not an element of dispute involved in this statement of The jury could not, therefore, disbelieve them, if they would, and it would have been an idle thing to submit the proposition to them. Neither the guilt or innocence of the plaintiff nor the truth of the information are involved. The foregoing principles are conclusive of the case, and it is unnecessary to discuss the question of the appellee's submission of the case to an attorney before making the arrests, or the effect of the trial by the examining court. Judgment affirmed. BEVILL v. COMMONWEALTH. (Court of Appeals of Kentucky. Dec. 3, 1895.) HOMICIDE-INVOLUNTARY MANSLAUGHTER -INSTRUCTIONS EVIDENCE. 1. Defendant was charged with the murder of a woman with whom he was criminally intimate, and there was evidence that, except when he was drinking, he was kind to her; that one P. and others spent about half an hour with her and defendant, when they were apparently friendly and sober; that, in about five minutes after they left, P. saw her and defendant, standing up, in a scuffle; that they scuffled a few minutes, when she fell; that defendant ran away. Deceased's neck was broken. Held, that the court should have charged on the law of involuntary manslaughter. 2. In such case the court should have charged that if defendant and deceased were in a friendly scuffle, and by accident her neck was broken, defendant was not guilty. 3. Where defendant is charged with killing a woman, it is error to admit evidence that, long before the killing, he offered to allow witness to have carnal knowledge of deceased, for pay to him. Appeal from circuit court, Hart county. "Not to be officially reported." Clarence Bevill was convicted of murder, and appeals. Reversed. Hermon Morris and Bales & Duff, for appellant. W. H. Holt and William J. Hendrick, for the Commonwealth. GUFFY, J. At the September term, 1892, of the Barren circuit court, the grand jury returned an indictment against the appellant, Clarence Bevill, charging him with the murder of Nellie McGuire. A change of venue was taken to Hart county, and upon final trial the appellant was found guilty of murder, and sentenced to the penitentiary for life; and, his motion for a new trial having been overruled, he prosecutes this appeal. Counsel for appellant insist that the court erred in refusing to give certain instructions, and erred in permitting Bruce Pursley to testify, in substance, that the appellant, long before the killing, had offered to allow witness to have carnal knowledge of deceased, for pay to him (appellant); also, that the court failed to properly instruct the jury. The evidence in the case shows that a criminal intimacy had existed between appellant and the deceased, Nellie McGuire, for a number of years before her death, and also conduces to show that, except when he (appellant) was drinking. he was kind and devoted to her. The testimony conduces to show that appellant and deceased were seen lying on the ground, apparently friendly and sober, by several parties, and that Lon Pursley and others, after spending some timeperhaps half an hour-with appellant and deceased, went, about 25 or 30 steps, down to the corner of Smith's garden fence, and took a drink. Then Lon Pursley went back to offer appellant, Bevill, a drink. On Pursley's return, having been absent about five minutes, he saw appellant and deceased, in a scuffle, standing up,-his hands on her shoulder or head, and her hands on his shoulders. They scuffled a few minutes, and deceased fell to her hands and knees, and then rose about halfway up, made a step or two, and fell with her face down. Witness called to Jim Hale to come there; that Clarence Bevill was killing Nellie McGuire. Then appellant ran off, about six steps to the west, and squatted behind some bushes, and looked back over his shoulder at deceased. Witness called to him twice, but after the second call he jumped up and ran off. The deceased died in a few minutes, her neck having been broken. We are not prepared to say that the court should have given any of the instructions as asked by appellant, yet the court should have given an instruction on the law of involuntary manslaughter. It would have also been proper to have instructed the jury, in substance, that if they believed from the evidence that appellant and deceased were in a friendly scuffle, and that by accident her neck was broken, they should find defendant not guilty. It was error to admit the testimony of Bruce Pursley. The effect of such testimony could hardly fail to be prejudicial to appellant. For the errors indicated the judgment of the court below is reversed, and cause remanded, with directions to award the appellant a new trial, and for further proceedings consistent with this opinion. GREEN v. COMMONWEALTH. (Court of Appeals of Kentucky. Dec. 3, 1895.) HOMICIDE-ORAL INSTRUCTION-WHEN PROPEREVIDENCE. 1. Where defendant is on trial for killing his wife, and there is evidence that about the time he killed her he killed a certain man, the court need not instruct the jury in writing that the evidence as to the killing of such man should not aggravate or palliate the offense for which defendant was being tried, but it is sufficient for the court to properly admonish or instruct the jury orally as to the purpose of such evidence when it is introduced. 2. On trial of a person for murdering his wife, where the evidence showed that about the time the wife was killed defendant killed a certain man, and that the killing of such man was so nearly simultaneous with the killing of the wife that the fact that defendant killed him was admissible, it was error to admit evidence of threats by defendant to kill him, and of what defendant said as to the killing of such man. 3. In such case it was error to admit evidence showing the manner of the killing of such asks a reversal upon several grounds. The indictment accused him of the murder of his wife, Annie Green. It appears from the testimony that at or about the same time of the killing of Annie Green he also shot and killed Henderson Wakes. The evidence of the killing of Wakes was allowed to be proven over the objections of the appellant. The killing of Wakes was so nearly simultaneous with the killing of Annie Green that the fact that defendant killed Wakes was admissible, but it is argued that the entire evidence as to such killing should not have been admitted. It is also insisted that the court erred in not instructing the jury in writing that the evidence as to the killing of Wakes should not aggravate nor palliate the offense for which appellant was being tried. It seems to us that such instruction or admonition does not come within the rule of law requiring all instructions to be in writing. It was sufficient for the court to properly admonish or instruct the jury as to the purpose of such evidence orally, at the time it was introduced. It was error to admit the testimony of John McElroy as to what appellant said as to the killing of Wakes. Meriett Perry was permitted to testify that appellant had often said to him that he (appellant) intended to kill Henderson Wakes. This testimony, it seems to us, ought not to have been admitted. It was also error to allow the commonwealth to prove by John Clark that appellant said he would kill Henderson Wakes the first time he caught him out. The testimony of Capt. Crane seems to have been almost wholly directed to showing the manner of the killing, and, in so far as it related to such killing, was incompetent. Appellant also complains of the refusal of the court to allow him to prove that shortly before the killing of his wife he had been informed that she was criminally intimate with Wakes. Such proof would have been no justification for the killing, yet it would have been proper to have admitted it. It may be conceded that the competent testimony conduces strongly to show that appellant was guilty of the crime charged, yet it may be that, but for the errors complained of, his punishment would not have been fixed at death. The evidence of threats against Wakes, together with the proof as to the killing, would tend to convince the jury that appellant was guilty of two murders, although only on trial for one. The reasonable tendency of such evidence would be to incline the jury to fix the highest degree of punishment allowed by law, and such was their verdict in this case. For the errors indicated, the judgment of the court below is reversed, and cause remanded for a new trial upon principles consistent with this opinion. KENTUCKY NAT. BANK et al. v. LOUISVILLE BAGGING CO. et al. (Court of Appeals of Kentucky. Dec. 6, 1895.) ASSIGNMENT FOR THE BENEFIT OF CREDITORS-SUIT BY ASSIGNEE-COSTS-COMMISSIONS. 1. Where an assignee for the benefit of creditors, knowing that the trust property is subject to liens in an amount greater than its value, invokes the aid of equity in the settlement of the trust, the property so incumbered cannot be charged with any costs which would not necessarily have been incurred by the lien holders had no suit been brought by the assignee. 2. The assignee of an insolvent company, whose property was pledged for more than its value, brought suit to settle the trust, and, refusing to turn over to the pledgees the property, for which they held warehouse receipts, sold it for less than the amount it was pledged to pay; the pledgees purchasing the same, and the proceeds being applied on their claims. Held, that the assignee was not entitled to commissions on such sales. Appeal from chancery court, Jefferson county. "To be officially reported." Action by the Louisville Trust Company, trustee for the benefit of the creditors of the Louisville Bagging Company, against the Kentucky National Bank and others, to settle the trust. From a judgment against defendants for commissions on sales, attorney's fees, and other expenses, defendants appeal. Reversed. Humphrey & Davie, Strother & Gordon, and W. B. Dixon, for appellants. Hargis & Turner, Jr., for appellees. PAYNTER, J. On the 2d day of March, 1891, the Louisville Bagging Manufacturing Company made a deed of trust to the Fidelity Trust & Safety-Vault Company, by which it mortgaged to that company certain real estate and machinery to secure bonds, payable to bearer, amounting to $50,000. The principal part, if not all, of these bonds were held by the appellants the Kentucky National Bank, the Merchants' National Bank, and the National Bank of Cynthiana. This deed of trust created a first lien upon the property. To secure various notes which the Louisville Bagging Company owed the banks named and the Louisville Banking Company, it pledged various lots of bagging. On certain bagging, not pledged to the banks, an execution, in which Ella Dolan was plaintiff, was levied. There was but little property owned by the bagging company which was not covered by the liens mentioned, which amounted to many thousand dollars more than the value of its assets. While in this insolvent condition, on July 21, 1892, it Imade a deed of assignment to the Louisville Trust Company of all its property, in trust for the benefit of its creditors. On the 24th day of August, 1892, the trustee instituted this action to settle the trust. On the 12th of September, 1892, it procured an order by which appellants were enjoined from appropriating any of the assets of the Louisville Bagging Company in payment, in whole or in part, of the respective claims, except as the court might order, and from prosecuting an action for that purpose. The bagging pledged to the appellants was ordered sold. However, the order provided that all valid liens on any of the property sold should attach to the proceeds of the sale thereof. The court also reserved the questions as to what part of the assets should be charged with the costs of such sale. The property mortgaged and pledged to secure the payment of the debts which the Louisville Bagging Manufacturing Company owed the appellants was insufficient to pay them. The validity of the claims of appellants was conceded in the petition filed to settle the trust, and the property upon which the liens existed described therein. The banks held the warehouse receipts. The appellants being enjoined from appropriating the property pledged to the payment of their debts, and from bringing suits to enforce their liens, they were compelled to answer in this case, which they did, setting up their respective claims. The banks holding the warehouse receipts, after the assignment, sought to have the Louisville Trust Company turn over to them the property on which they were issued, to pay their debts, but this effort failed. The trust company insisted on its right to have, and did obtain from the banks, the warehouse receipts. The property, outside of that which was mortgaged, pledged, and in lien, was insufficient to pay the expenses of this suit, and some other expenditures made by the trustee. To cover this deficiency, the court adjudged that the appellants should pay it, because they had received the proceeds of the property upon which they held a first lien. The question for review on this appeal is as to the correctness of that judgment. The sums allowed by the judgment of the court are as follows: Attorney's fees for bringing suit to To Louisville Trust Company, 5 per To Louisville Trust Company, 5 per To Commissioner H. V. Loving. $1,500 00 200 00 643 89 201 24 67 68 433 85 200 00 1,050 33 It was adjudged that the bondholders should pay $2,958.96. Of the total amount of costs and expenses adjudged, $912.81 are commissions, allowed the Louisville Trust Company on the sale of the bagging pledged to the banks. The Merchants' National Bank purchased the bagging which was pledged to it, and the trustee never received or disbursed any part of the proceeds. The banks were represented by attorneys in the case. The exceptions filed by the banks to the commissioner's report questioned the right to allow attorney's fees, the commissioner's fee for making report as to state of accounts, the 5 per cent. commission on the proceeds of the pledged bagging sold, and in ordering that the trustee be reimbursed $210.10. When an estate is assigned, and the trustee accepts the trust, he takes the property with all valid liens and incumbrances on it. The trustee receives no greater interest in the property than the assignor possessed. Bank v. Stone, 80 Ky. 109; Bridgford v. Barbour, Id. 529. "The assignee succeeds only to the rights of the assignor, and is affected by all the equities against him, and that he takes the property subject to all equities. He takes subject to all existing liens, charges, and set-offs." Burrill, Assignm. § 391. Certainly, no subsequent mortgagee, vendee, or volunteer acquires equal or superior rights in property to those under a valid prior mortgage. The mortgagor could not make a sale of the property so as to affect a valid lien His ability to affect such liens is not increased when he becomes insolvent, and seeks the aid of another to help appropriate his property to the payment of his debts. He cannot, by an assignment, impart a character to the claims of other creditors which will enable them to appropriate the property to the prejudice of a holder of a valid lien. If the claims of the creditors cannot affect the rights of the holder of a valid lien, and the assignor can only vest the trustee with such interest in the property as he possesses, certainly the trustee cannot, in his effort to pay unsecured debts, and, if possible, save something for the assignor, incur costs in such effort that can be paid out of the proceeds of the property upon which the lien existed, so as to deprive the lien holder of the amount of such costs. When a trustee in an assignment for the benefit of creditors accepts the trust, he must understand that he takes it subject to incumbrances. If he rushes into court to settle the trust, he must know that there are sufficient assets to pay the costs of the suit. If the estate is incumbered to its full value, he must know that he can neither realize anything for the unsecured creditors or his assignor. A trustee may invoke the aid of a court of equity in the settlement of his trust. If there is no estate except that which is bound to pay preferred creditors, it follows that there are no assets out of which to pay the expenses of such a suit, and he should not go into court and incur costs. The court could not confer a right on the trustee to appropriate any of the property on which the lien existed to the payment of such costs, to the prejudice of the holder. Primarily, it is not the province of a court to grant rights, but to enforce those which exist. There was no question as to the correctness of the several claims of the banks, nor was there any as to the liens on the property. From the facts as they appear in the petition, the trustee must have known the mortgaged and pledged property was insufficient to pay the incumbrances on it. Therefore the action was not instituted, nor was it prosecuted, in the interest of the lien holders. The banks should not have been ordered to pay fees to the attorneys of the trustee. Neither should they be charged with the commissioner's fees for auditing accounts, as his services were not essential to aid the banks in the enforcement of their liens. The principal work done by the commissioner, as to the claims of the banks, was to make a statement of their claims, so as to show what part of the expenses of this action the bondholders, and what part the pledgees, should pay. We do not think the banks should be charged with any part of the commissioner's fees in making the report as to accounts, etc. The banks desired to hold their warehouse receipts, and have the bagging for which they were given by the warehousemen turned over to them. This the trustee refused to permit. This bagging was sold for less than $20,000, while the claims it was pledged to pay amounted to more than that sum. The Merchants' National Bank purchased the bagging pledged to it, for which it gave over $13,000, and the same was applied on its debt. The trustee never received or disbursed any part of this sum; still it was allowed a commission of 5 per cent. on that amount, to be paid by the bank. Although it is claimed the trustee was acting for the banks in this matter of selling the bagging, as a matter of fact the trustee was acting in opposition to their wishes, by refusing to turn over to them the pledged bagging, and in forcing a sale of the property, and in endeavoring to compel them to pay its commissions out of property in which they had practically the entire interest. In what the trustee was doing in this matter, it must be regarded as acting in the interest of the unsecured creditors and the assignor. However, in no event was the assignee entitled to commissions on the sale of this bagging, for which the pledgees were responsible. It does not appear from this record that the overdisbursement of $210.10 was to the banks, as they do not seem to have received more than they were entitled to out of the proceeds of the property mortgaged and pledged to them. Therefore the court should not have ordered that the banks reimburse the trustee In Re Dean, 86 N. Y. 398, it appeared that a man named Fry made an assignment for the benefit of his creditors to a man named Dean. The property was mortgaged for $40,000. At the time of the assignment an |