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A Finding of a Jury in a case involving a charge of murder that they find the defendants guilty as charged, but recommend one of them named to the mercy of the court, is a nullity, and cannot be consid ered by the court as a verdict of murder in any degree: Jenkins v. State, 35 Fla. 737, 48 Am. St. Rep. 267.


[88 Miss. 235, 40 South. 488.]

PARTITION-Reversions and Remainders.-Under the Mississippi statute, rights in reversion and remainder cannot be affected by partition proceedings, and it is improper to make reversioners or remaindermen parties thereto. (p. 739.)

PARTITION-Specific Allotment by Decree.-In partition proceedings, it is error for the court to direct, of its own motion, the commissioners to so partition the land as to give to one of the parties a designated portion of the land. The division of the property should be left to the commissioners without instruction.

(p. 739.) PARTITION-Appeal.-Decrees in Partition are Entireties,

and cannot be reversed in part. (p. 739.)

Mrs. L. Allen, by her will, devised an undivided one-half interest in her lands to Laura V. Bonner, and to her sister, Emily N. Lawson, the remaining undivided one-half interest in such lands for the period of her natural life and at her death such interest to go, share and share alike, to the children of testatrix's two brothers, Charles and Richard Lawson.

After the will was probated, Mrs. Bonner commenced proceedings for the partition of the land, making parties thereto the life tenant, the remaindermen and the children of Charles and Richard Lawson, the latter being dead. A decree was rendered appointing commissioners to partition the land in two equal parts, with instructions to them to assign to Mrs. Bonner without ballot that part of the land as divided by them on which the dwelling-house was situated, the remaining half to be assigned to Emily N. Lawson for life, remainder to the children mentioned above. Partition was made and confirmed as directed.

Watkins & Watkins, for the appellants.

Williamson, Wells & Peyton, for the appellee.

256 WHITFIELD, C. J. Our statutes (Code 1892, see. 3097 et seq.) make it plainly improper to partition any

rights in reversion or remainder, or to make reversioners or remaindermen parties to any partition proceeding. The writ and all the proceedings are possessory purely. It was, therefore, manifest error for the court to attempt to deal in any way with the rights of the children of Charles and Richard Lawson. The extent of its power was to have partitioned the land on the west side of the road between Emily N. Lawson and Laura V. Bonner, leaving a new partition to be made at the death of the life tenant, Emily N. Lawson. Our decisions on our statutes have made all this exceedingly plain.

It was manifest error for the court to direct, of its own motion, the commissioners to so partition the land as to give to Mrs. Bonner the part on which the residence was situated. That was for the commissioners. It was also gross error to tax the interests in remainder with any of the costs of the proceedings, and to decree the partition originally as here ordered, or the sale subsequently made of the remainder interests for sixty-two dollars and thirty cents. The decree in this case is in its very nature an entirety, inseparable 257 and indivisible. The proceedings throughout are a comedy of errors. We cite no authorities, for the reason that all our own authorities, and the authorities elsewhere pertinent to the subject matter, have been most discriminately collected and analyzed in the very able brief of the learned counsel for the appellant, which we direct to be printed in full.

Reversed and remanded.

The Partition of Estates Held in Reversion or Remainder is the subject of a note to Fitts v. Craddock, 113 Am. St. Rep. 55.


[88 Miss. 257, 40 South. 545.]

TRIAL-Misconduct of Counsel-Abuse of Accused. It is reversible error for prosecuting counsel in a trial against a mulatto for murder to be allowed to state in his argument to the jury, as true, a material fact not based upon nor warranted by the evidence, and to further greatly abuse the character of the accused on the sole ground that he was a mulatto. (p. 740.)

G. J. Rancher and G. H. Ethridge, for the appellant.

R. V. Fletcher, assistant attorney general, for the appellee. 259 CALHOON, J. It appears that the district attorney was permitted by the court to use the following language over objection: "The shirt was cut and fixed in the jail with Charley Stuart's knife." This is without support in the evidence. The district attorney further said to the jury these words: "Not a negro in that great concourse of negroes who threaten to be respectable has dared to come here and testify in behalf of this mulatto" (at the same time pointing to the defendant). He further said to the jury that: "In any other commonwealth in this Union [pointing to the defendant] he would be hung without benefit of clergy." He further said to the jury, referring to the evils of miscegenation, the defendant being a mulatto, that "mulattoes should be kicked out by the white race and spurned by the negroes; that the defendant was whiter than himself, the counsel of defendant, or the judge, or any of the jury, but that they were negroes, and that as long as one drop of the accursed blood was in their veins they have to bear it; that these negroes [referring to the defendant and his brother] thought they were better than other negroes, but in fact they were worse than negroes; that they were negritoes [pointing at the defendant], a race hated by the white race and despised by the negroes, accursed by every white man who loves his race, and despised by every negro who respects his race.'

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Mulattoes, negroes, Malays, whites, millionaires, paupers, princes, and kings, in the courts of Mississippi are on precisely the same exactly equal footing. All must be tried on facts, and not on abuse. Only impartial trials can pass the Red Sea of this court without drowning. Trials are to vindi

cate innocence or ascertain guilt, and are not to be vehicles for denunciation.

Reversed and remanded.

Misconduct of Counsel in Argument is discussed in the notes to McDonald v. People, 9 Am. St. Rep. 559; Cleveland etc. R. R. Co. v. Pritschau, 100 Am. St. Rep. 689. A prosecuting attorney represents the majesty of the people; and, having no responsibility except fairly to discharge his duty, should put himself under proper restraint, and not go beyond the evidence or the bounds of reasonable moderation. If he lays aside the impartiality that should characterize his official action to become a heated partisan, and by vituperation of the prisoner and appeals to prejudice secks to secure a conviction at all hazards, he ceases properly to represent the public interest: Fielding v. People, 158 N. Y. 542, 70 Am. St. Rep. 493; Rhodes v. Commonwealth, 107 Ky. 354, 92 Am. St. Rep. 360. See the illustrations of this doctrine in the recent cases of Smith v. State, 44 Tex. Cr. Rep. 137, 100 Am. St. Rep. 849; State v. Blackman, 108 La. 121, 92 Am. St. Rep. 377; Miller v. Nuckolls, 77 Ark. 64, 113 Am. St. Rep. 122.

SEARLES v. WESTERN ASSURANCE COMPANY. [88 Miss. 260, 40 South. 866.]

INSURANCE, MARINE-Constructive Total Loss.-Under a policy of marine insurance stipulating that there shall be no abandonment of the vessel insured as for a "constructive total loss" unless the cost of the necessary repairs required solely by the disaster, exclusive of the cost of raising or rescuing the vessel and taking her to the dock, be equivalent to seventy-five per cent her agreed value, the words "constructive total loss" mean such a loss as that the repairs made necessary thereby, exclusive of raising or rescuing and taking her to the dock, would be equivalent to seventy-five per cent of her value, and when the cost to repair the vessel is less than that, the insured cannot abandon her and recover as for a constructive total loss. (p. 747.)

INSURANCE, MARINE-Constructive Total Loss-Abandonment of Vessel.-Under a policy of marine insurance stipulating that there shall be no abandonment of the vessel insured as for a "constructive total loss,'' unless the cost of the necessary repairs required solely by the disaster, exclusive of the cost of raising or rescuing the vessel and taking her to the dock, be equivalent to seventy-five per cent of her agreed value, the insured cannot justify an abandonment of the vessel, as for a "constructive total loss" by proof that there were no facilities where she sank for raising her, and by making the expense of bringing her to a dock an element of damage, showing that as to him sue was worthless. (p. 747.)

INSURANCE, MARINE.-A provision in a marine insurance policy giving the insurer the right to recover and repair the insured vessel if at any time he believes that his interests demand

such action, does not defeat his right to resist any claim for damage made by the insured. (p. 748.)

INSURANCE, MARINE—Acceptance of Premium After Loss. If the insurer, in a policy of marine insurance, accepts the balance of the premium due after disaster to the insured vessel, he does not thereby waive the defense that no such loss has occurred as that sued for. (pp. 748, 749.)

McLaurin, Armistead & Brien, for the appellant.

Smith, Hirsh & Landau, for the appellee.

265 MAYES, J. On the twenty-fourth day of February, 1903, Searles insured a certain barge owned by him and used in transporting freight and merchandise on the Mississippi river. The insurance began at noon on the twenty-fourth day of February, 1903, and ended at noon on the twenty-fourth day of February, 1904, and was taken out in the Western Assurance Company, appellee. The amount insured for was not to exceed two thousand dollars. The policy of insurance is made an exhibit 266 to the bill; but, as the suit is predicated of only one clause of the insurance policy, we do not deem it necessary to set out any clause but this. The clause referred to is clause 8, which is as follows, viz.:

"There shall be no abandonment as for a constructive total loss in consequence of any loss or damage, unless the cost of the necessary repairs required solely by the disaster, exelusive of cost of raising or rescuing the vessel and taking her to the dock and any general average charge, be equivalent to seventy-five per cent of the agreed value of the vessel as specified herein; nor shall there be any right to abandon on account of said vessel grounding or being otherwise detained."

This same clause also provides that, where the right to abandon exists, it shall not be held to be valid, or allowed as effectual, unless it be in writing, and signed by the assured, and delivered to the company or its authorized agent. In October, 1903, Searles filed a declaration in the circuit court of Warren county to recover the full amount of the insurance granted by the policy; that is to say, two thousand dol lars. The declaration alleges that on the twenty-ninth day of July, 1903, the barge was totally destroyed by the unavoidable dangers of the Mississippi river, and that by reason of violent winds, etc., though every effort was made to save the vessel, she became thereby a constructive total loss within the terms of the policy under which it was insured. The declaration also alleges that the plaintiff performed all the condi

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