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[6] Under assignment No. 12 the point is made that the chancellor erred in permitting the witness Hanson to answer the following: "Did they [referring to the insurance companies] at any time, by letter or otherwise, up to the filing of the cross-bill in this case, state to you that you had knowingly made a false statement as to the value of this property for the purpose of deceiving and defrauding the company? A. No."

The objection made on the trial was that the evidence was immaterial. We think the objection was well taken, but the evidence could not have injured the defendants, and the error was not, therefore, a reversible one, to say nothing of chapter 32, Acts of 1911, which forbids the court to reverse unless it affirmatively appears that the error affected the verdict. As stated, the contrary appears, because there was no pretense that Hanson had knowingly made a false statement as to the value of the property, except in so far as that matter was related to his supposed knowledge of another compress of substantially the same kind, procurable for $15,000. We have already stated in another connection that there is no evidence that he had any such knowledge. It is true that the insurance companies, even if they believed that he had made a false statement, were not bound to make that charge to him, and no adverse inference could be properly indulged against them because of their failure to make the charge. But for the reason stated the error was innocuous.

[7] We have thus considered all the errors assigned which could under any kind of construction have a bearing upon issue No. 6; but, as already held, we are of the opinion that that issue was, for the reasons given, an improper one-that is, because of the confession of liability on the part of the insurance companies. Therefore all of the questions raised on the issue were really immaterial. Out of deference to the learned counsel, however, we have considered them, and stated our conclusion in respect of each of them.

This brings us to the main questions in the case, those falling under issues Nos. 1 and 2. The questions chiefly arise under issue No. 1.

[8] Assignment No. 13 makes the point that there is no evidence to sustain the finding of the jury under these issues, and No. 14 makes the point that the amounts found were excessive. There was ample evidence under which the jury acted, and the rule is that, where there is any evidence to sustain the verdict on the facts, we cannot interfere. [9] It is complained under assignment No. 1 that the chancellor refused to charge the following request, offered by defendant's counsel:

$5,000, according to the statement of Mr. Hanson, and you further find that the compress, the amount for which the press at Natchez boilers, and machinery were a total loss, then could be purchased, $15,000, should be your answer to issue No. 1."

"If you find that a compress, machinery, boilers, etc., of a type similar in all respects to the compress, machinery, etc., that was injured in the fire on March 1st, could have been purchased at Natchez, Miss., at or immediately after the fire, for the sum of $10,000, plus the cost

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Both of the instructions were properly refused, because they assumed a fact, as to which there is no testimony in the record, viz., that such a compress as is referred to in the instructions could have been purchased at or immediately after the fire for the sum of $10,000, plus the cost of installation, say about $5,000, in all about $15,000. As we have previously said, in disposing of another assignment, the opportunity to buy such machine at Natchez, Miss., because of the great devastation by the boll weevil in that country, did arise in July, 1913; but this was more than four months after the fire, and there is no evidence that this machine could have been purchased at the price at any time before July 5th, or at any time thereafter. The only evidence upon the point is that which appears in Mr. Hanson's testimony, which is as follows:

"When I made the proposition to Mr. Shafer [representing the insurance companies] to it and bring it to Argenta and put it up, he did take that Natchez press, if he would dismantle not accept the proposition. I put that to Mr. Shafer in this way: We had big cotton prospects in Arkansas, and I was anxious to rebuild. Our operations are profitable there, and I wanted to keep going, and the trade was after me to go ahead and rebuild, and now I said to Mr. Shafer: 'If you will take that Natchez plant and put it down at Little Rock, we will call the machinery part of it square. I estimate it will cost $5,000 to move it. It may cost you a little less, or a little more. Here is a telegram that says you can get it for $10.000. Now give me that plant in Little Rock and we will call the machinery part square, and we will take up the question of the buildings; or, if you don't want to go to and building it, give me $15,000, and I will the trouble of taking that plant and moving it go and buy it and move it myself'-because I was anxious to get this thing settled, to get the benefit of the particular advantages existing at that time. Q. Do you know whether you can get it at all, now? A. No, sir; he said I had insulted his intelligence, and he was rather He seemed hard to talk to on that account. to think it was insulting his intelligence, and he objected to it."

Mr. Hanson further testified:

"I do not know where I could get a press at

Not only were the instructions properly ket has been taken by cheaper machines dodisallowed, because of the incorrect assump- ing practically the same work, although not tions of fact therein contained, but likewise so safely. on the ground that after such refusal the companies would be estopped to base any claims on the offer made at Natchez in July, 1913.

[10] The second assignment of error complains of a certain portion of the charge. The assignment as drawn omits, supplying the blank with asterisks, certain words which we deem material to a proper understanding of the views of the trial judge as given to the jury.

The language of the charge complained of was as follows:

"You will find in the policies the provision that the actual cash value of the property damaged at the time of the fire is to be the test. Now actual cash value means the value of a thing upon the market-what it would cost to produce it in like condition, as it was before the fire. If you find that the press and machinery were a total loss under issue No. 1, you will ascertain at what figure another press, machinery, boilers, etc., similar in all respects to that destroyed, could have been purchased, and that figure will and should be your answer to issue No. 1.

"So far as the proof goes, gentlemen, as to another press that could have been purchased at Natchez, Miss., if that was a purchase that could have been made only at a particular time, and not one that could have been made on the open market at any time, and if that was meant merely as a matter of compromise, why you may consider that-you may look to that in determining the value of a new press; and, assuming this to be a total loss, the test is what another press-what it would cost to procure another press-just as good as the one in question before the fire."

The policy provision referred to reads: "This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value, with proper deduction for depreciation, however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality."

The facts applicable to issue No. 1, as to which the instruction complained of applies, are as follows:

The Bierce compress, which was the subject of the insurance, was the best and likewise the most costly one made. It is true it was slower in its operation than others, and a little more expensive in the way of fuel, but less liable to accident, and an accident occurring by the breaking of any of its parts would rarely ever result in the death of any of the operatives, or in any injury to the plant. Though slower, as stated, this type of machine is very durable, and is sufficiently rapid in its movements to accomplish all needed work. The initial expense is a little over $40,000. By reason of this fact it is no longer made for the general market, and can be purchased only, if at all, on special order; that is, to be made for

The history of the special compress in question is as follows:

It was bought six or seven years before the fire in question from a firm or concern in New Orleans that had used it but little, and had gone out of business. Complainants bought it at a sacrifice price of $11,500, including cost of removal and reinstallment, but it was as good as new. It was moved to Argenta, Ark., by complainants and set up there. It went through a fire in 1911, but comparatively slight in character, only the smaller parts of the machine being injured, and repairs were made which restored it to a condition as good as new. Then came the fire in 1912, which the evidence shows was a very great one; 7,000 to 9,000 bales of cotton, ranged near the machine, were burned; steel was melted and ran very close to this great compress, and the heat was so great, mounting up to 2,900 degrees, as that the machine was practically ruined.

The amount to which the machine was insured in 1911 was $15,000. The policy at that time was placed at the figure stated, because complainants had learned primarily where they could procure another machine as good as their own at second hand for the price named. But, the policies having a coinsurance clause, the companies proved by the appraisement of Coats and Burchard, well-known public appraisers in Chicago, that the machine was worth $40,000, and compelled complainant to account for it on that basis, by means of which they lost, under the coinsurance clause, between $7,000 and $8,000.

We have already referred, in another part of this opinion, to the nature of the opportunity to obtain another machine of the Bierce type after the fire of 1912. As stated, there was another machine just as good in Natchez, Miss., that could have been procured in July, 1913, for $15,000, because of the prevalence of the boll weevil in that part of the country, which had ruined the cotton crop. As already stated, this matter was brought to defendant's attention, and an effort was made by complainant to settle on procurement of that machine for them; but the defendants indignantly refused the offer.

There is no evidence to show that it could have been procured for that price at any earlier or later date, or any other machine of the kind for that price.

As applicable to these facts, we think the charge is correct. Certainly there is nothing in it of which the defendants could complain. It is substantially in accord with the rule contended for by them, for which they cite McCready v. Hartford Insurance Co., 61 App. Div. 584, 585, 70 N. Y. Supp. 778, 779; Standard Sewing Machine Co. v. Royal Insurance

*

rett v. Insurance Co. (Tex. Civ. App.) 36 S.
W. 125; Frick v. Insurance Co., 218 Pa. 409,
67 Atl. 743. We shall quote from one of
these cases, the first mentioned, as follows:
"The plaintiffs claim that there was a total
loss,
and that the verdict should
have been for the full sum of $5,000 [the amount
of the policy]. They insist that upon a true
construction of the policy the underwriter was
liable for a total loss. The real question upon
this branch of the case is: What is the measure
of liability of the defendant under its policy?
The plaintiffs insist that it is the value of the
building as it stood just before the fire. Under
the terms and conditions of the policy in suit,
which is ·
standard form,
the
parties have
agreed [among them-
selves] upon the measure of liability.
It is provided
that this company
shall not be liable beyond the actual cash val-
ue of the property at the time any loss or dam-
age occurs, and the loss or damage shall be as-
certained or estimated according to such ac-
tual cash value, with proper deduction for de-
preciation, however caused.' Thus far, and
if nothing more were contained in the policy, it
is apparent that if there were a total destruc-
* the company would be liable for
its actual cash value at the time [of the loss];
but the policy also provides that the liability of
the underwriter 'shall in no event exceed what
it would then cost the insured to repair or
replace the same with material of like kind and
quality. By this stipulation the parties settled
for themselves the measure of damages in case

* *

*

tion

of loss. Plaintiffs expressly agreed [thereby]
that the indemnity to be furnished
should be the sum that it would cost the insured
to repair or replace the building with materi-
al of like kind and quality."

Complainant's counsel have insisted that, because defendant did not specially plead the second part of the standard clause, they cannot rely on it, citing Mechanics' Insurance Co. v. C. A. Hoover Distilling Co., 182 Fed. 590, 105 C. C. A. 128, 31 L. R. A. (N. S.) 878. Defendant's counsel insist that the rule stated in the opinion referred to is unsound in principle and not supported by the authorities cited therein. From what has been said it is apparent we have no need to consider this question.

It appears that complainant's plant was under mortgage to a trustee for the benefit of certain bondholders for an amount in excess of the whole insurance, and that the rights of the bondholders were fully recognized and protected in the policies; also that by an amendment to the bill the trustee for the bondholders came in and asserted his right and their rights. It is argued for them that as between them and the companies they occupy a certain status superior to that of the compress company, in that they are relieved of any derelictions and defaults charged by defendant against the complainant corporation. From the view we take of the case it is apparent that this question likewise needs no discussion or decision at our hands at the present time.

HESSIG-ELLIS DRUG CO. v. STONE et al.
(Supreme Court of Tennessee. June 13, 1914.)
MASTER AND SERVANT (§ 82*)—Wages-LIENS
AND PREFERENCES-ENFORCEMENT.

A petition for the establishment of the preferred_lien for employés' wages given by Acts 1897, c. 78, as amended by Acts 1905, c. 414, was properly denied where it merely described the property, which was in the hands of a receiver appointed by the court, as the drug business at the corner of C. and M. avenues in M., particularly as there were prior liens on part of the property, as it should have described the property specifically, with a statement of the nature of the lien, or an attachment should have been issued and levied.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 128-134; Dec. Dig. § 82.*]

Appeal from Chancery Court, Shelby County; Francis Fentress, Chancellor.

Creditors' bill by the Hessig-Ellis Drug Company against J. B. Stone and others, wherein one Sager and another petitioned for the establishment of a preferred lien. From a decree denying such lien, the petitioners appeal. Affirmed.

Fitzhugh & Biggs, McKellar & Kyser, and Arthur C. Fant, all of Memphis, for appellants Hessig-Ellis Drug Co. L. T. M. Canada, of Memphis, for appellee Stone.

LANSDEN, J. The only question necessary to be determined in this case is whether the appellants Sager and Brookover have acquired a lien asserted in their petition. The chancellor held that they had not perfected the lien claimed because no attachment was issued and levied upon the stock of drugs, and because the act of 1905 creating the lien is unconstitutional and void.

The petitioners were employés of Mrs. Stone, one the prescription clerk and the other a porter in her drug store. She is indebted to them for wages in the sum stated in the petition.

The original bill is a general creditor's bill against Mrs. Stone and was filed March 15, 1913. March 18th a receiver was appointed and given possession of the stock of drugs in controversy. The petitioners filed their petition April 16th after the appointment of the receiver, and before the sale of stock of drugs by the receiver. The property which came into the hands of the receiver consists of a stock of goods and certain fixtures in the drug store, including a soda fountain and "appurtenances," one roller-top desk, one iron safe, and one McCaskey cash register. There was also another cash register, a hot soda appurtenance, and perhaps some other articles. The title to the McCaskey cash register was claimed by J. B. Stone. The other cash register was not paid for in full, the title to which had probably been retained by the seller. The hot soda "appurtenance" was also incumber

It results that there is no error in the decree of the chancellor, and it must be affirmed, with costs.

ed by a purchase-money debt. The soda fountain was claimed by the complainant for an unpaid balance of purchase price.

The description of the property upon which the petitioners claim their lien as contained in their petition is "the drug business at the Upon the grounds stated, we affirm the decorner of College and McLemore avenues in cree of the chancellor denying the petitionMemphis, Tenn.," and the petitioners "claimers the lien sought. Luttrell v. Railroad, a prior and superior lien and equity un- 119 Tenn. 507, 105 S. W. 565, 123 Am. St. der the statutes of the state over the oth- Rep. 737; Bryan v. Zarecor, 112 Tenn. 511, er creditors to the proceeds derived from the 81 S. W. 1252. sale when made of the fixtures and stock of drugs and other assets of said business which was conducted by the defendants at the corner of McLemore and College avenues."

tioner to specifically describe the property upon which the lien is claimed, together with the statement of the nature of the lien, or it is necessary that a writ of attachment issue and be levied.

The petitioners deny that the complainants have any title retained to the soda fountain described in their bill, "which soda fountain was used in said business at the corner of College and McLemore avenues."

The prayer of the petitioners, in part, is that petitioners have a decree for the amount of their claims and have been paid out of the assets or proceeds derived from the sale of the stock of drugs and fixtures and out of their assets of said business and that their lien "on all the assets of said business for what is found to be due them be declared, and that they have satisfaction in full for their indebtedness in preference to the general creditors of said estate."

Without deciding whether it is necessary, in a case like this, for attachment to actually issue and be levied upon the property upon which the lien is claimed, it is clear that the petition does not contain a description of such definiteness as will take the place of the attachment. It would seem to be an idle ceremony to have attachment issue and be levied upon property in the hands of a receiver appointed in the case in which the attachment is sued out, but it is necessary that the petitioners identify the particular property upon which the lien is claimed by description in the petition or by description in the writ of attachment if it is issued and levied. The necessity of this is well illustrated by the adverse claims in this case to different articles of fixtures, the proceeds of the sale of which go to make up the fund out of which petitioners desire to have their claims paid. The conditional vendor of the soda fountain would, of course, have prior claims for his unpaid purchase money over that of the petitioners, and this would be true of the other fixtures upon which there was unpaid purchase money. But the petition does not identify any particular article upon which the lien is claimed, and confines the claim of the petitioners to the assets of the defendants generally. With admitted superior claims to particular articles, the court could not decree a prior lien upon the assets generally. It is necessary either for the peti167 S.W.-55

While it is not necessary to decide the constitutionality of chapter 414 of the Acts of 1905, it is not improper to say that a very serious question is made upon the validity of this statute. The title of the act is "An act to amend chapter 78 of the Acts of 1897, so as to give employés and day laborers of individuals engaged in mercantile lines of business a first lien upon the merchandise for their services." The amendment proposed in the act is to insert after the word "firm" in line 5 of section 1 of chapter 78, Acts of 1897, the following, "or of any individual engaged in mercantile lines of business," and to insert after the words in chapter 78 sufficient general words to make the act read, when amended, so as to include individuals as well as corporations and firms.

The criticism of the act is that it violates section 17 of article 2 of our Constitution, which requires all acts which repeal, revise, or amend former laws to recite in their caption or otherwise the title or substance of the law repealed, revised, or amended. It was held in Memphis Street Railway v. State, 110 Tenn. 608, 75 S. W. 730, and Burnett v. Turner, 87 Tenn. 124, 10 S. W. 194, that the reference to the chapter number of the act to be amended is not a sufficient compliance with the provision of the Constitution just referred to. It is further said in criticism of the act that its body does not recite the caption or the substance of the act proposed to be amended, but only recites the proposed amendments. As stated, we do not determine the soundness of these criticisms, but we have set them out in this memorandum so that the attention of the next Legislature may be directed to the questions made; and, if in its wisdom it is deemed proper, the whole subject of employers' liens may be re-enacted or the supposed infirmities of this act may be cured. Chapter 78 of the Acts of 1897 is also criticised as being class legislation because the lien therein conferred upon the employés is limited to employés of corporations and partnership. If the act of 1905 is valid, the criticism made upon the act of 1897 would be removed because the latter act as amended would include individuals, firms, and corporations.

The decree of the chancellor is affirmed at the cost of the appellants.

SCHEIBLER v. STEINBURG. (Supreme Court of Tennessee. June 13, 1914.) 1. MALICIOUS PROSECUTION (§ 34*)-ELEMENT OF SUIT-TERMINATION OF ORIGINAL CASE.

In order to maintain a suit for malicious prosecution, plaintiff must allege and prove that the original prosecution has terminated in his

favor.

[Ed. Note.-For other cases, see Malicious Prosecution, Cent. Dig. § 70; Dec. Dig. § 34.*1 2. CRIMINAL LAW (§ 302*) "NOLLE PROSEQUI."

A "nolle prosequi" is a formal declaration of record by the prosecuting officer that he will no further prosecute the case either as to some of the counts of the indictment or as to some of the defendants, or all together.

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true rule, and, although the case was reversed and remanded upon other grounds, the plaintiff in error has presented this single question for our consideration.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 688-697; Dec. Dig. § 302.* For other definitions, see Words and Phrases, vol. 5, p. 4814.]

3. MALICIOUS PROSECUTION (§ 35*)-TERMINATION OF ORIGINAL PROCEEDING NOLLE PROSEQUI.

[1, 2] It is universally held that, in order to maintain a suit for malicious prosecution, it is necessary to allege and prove that the original suit on which the malicious prosecution is based has terminated, and that it The entry of a nolle prosequi without procurement of the defendant is such a termina- resulted in favor of the defendant in that tion of the criminal prosecution in defendant's suit. Swepson v. Davis, 109 Tenn. 107, 70 favor as to sustain a suit by him for malicious S. W. 65, 59 L. R. A. 501; Pharis v. Lambert, prosecution, though the suit for malicious pros-1 Sneed, 228; Sloan v. McCracken, 7 Lea, ecution is brought on the day following entry of the nolle prosequi, while the court had power to set the nolle prosequi aside, since the court, in an action for malicious prosecution, could look no further than the final judgment to determine whether the prosecution had terminated in favor of the defendant therein.

[Ed. Note.-For other cases, see Malicious Prosecution, Cent. Dig. §§ 71-77; Dec. Dig. § 35.*]

626; Gas Co. v. Williamson, 9 Heisk. 314; Stewart v. Sonneborn, 98 U. S. 187, 25 L. Ed. 116; Crescent City Live Stock, etc., Co. v. Butchers' Union Slaughter House, 120 U. S. 141, 7 Sup. Ct. 472, 30 L. Ed. 614. This rule, however, as stated by Judge Cooley in his work on Torts, vol. 1, p. 341, is merely "a technical prerequisite," and means that the particular prosecution must have been disposed of in such manner that it cannot be revived, and the prosecutor, if he desires to proceed further, will be put to a new action. A nolle prosequi is a formal declaration of record by the prosecuting officer by which he declares that he will no further prosecute the case, either as to some of the counts of the indictment or as to some of the defendants, or all together. Black's Law Dictionary; Clark's Criminal Procedure, 375; 12 Cyc. 374.

Certiorari to Court of Civil Appeals.

Action by S. Steinburg against James E. Scheibler for malicious prosecution. A verdict for plaintiff was reversed by the Court of Civil Appeals, and the cause remanded, and defendant brings certiorari. Affirmed.

W. W. Goodwin and Barton & Barton, all of Memphis, for Scheibler. Leo Goodman and Anderson & Crabtree, all of Memphis, for Steinburg.

It appears that the Attorney General announced, when the criminal case was called for trial, that, on account of the absence of a certain witness, he could not proceed to trial, and, the court having set the case peremptorily, the Attorney General asked leave of the court to nol. pros. the case. To this the defendant in error objected and insisted upon a verdict of not guilty; but, after a considerable argument between counsel for the prosecution and the defense, the court allowed the nolle prosequi to be entered and discharged Steinburg. The next day this suit was brought.

[3] It was said by this court in State v. Fleming, 7 Humph. 154, 46 Am. Dec. 73, that a nolle prosequi is a discharge without acquittal, and can be awarded only by the Attorney General and the court. It being a discharge, it is necessarily a termination of the particular prosecution, although it is not a bar to a subsequent prosecution, unless it shall be entered after the defendant has been put to his trial upon a valid indictment before a jury duly sworn and impaneled. In such case, it is generally held that a nolle prosequi would terminate the prosecution, as the defendant would have been in jeopardy. Walton v. State, 3 Sneed, 687. It would seem that the entry of a nolle prosequi would terminate the particular prosecution at whatever stage of the suit it might be entered. We are of opinion, therefore, that the entry

LANSDEN, J. This suit was brought in the circuit court of Shelby county by Steinberg against Scheibler to recover damages for the alleged malicious prosecution of Steinberg by Scheibler for knowingly receiving stolen property. There were verdict and judgment in favor of plaintiff below for $10,000. Upon appeal to the Court of Civil Appeals, that court reversed and remanded the case for a new trial.

The case is before us upon the petition of Scheibler for writs of certiorari, and the only error assigned is the failure of the Court of Civil Appeals to reverse the case because the trial judge held that the entry of a nolle prosequi in the criminal case was a sufficient termination thereof to authorize the commencement of this suit. As stated, the Court of Civil Appeals held this to be the

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