State v. McKittrick.

STATE OF TENNESSEE v. McKITTRICK.

PRACTICE. Justices. Special constable.

A justice of the peace has no

power to appoint a special constable to execute a fi. fa.

FROM SHELBY.

Appeal in error from the Criminal Court of Shelby county. L. B. HORRIGAN, J.

ATTORNEY-GENERAL LEA for the State.

JOHN T. Moss for McKittrick.

FREEMAN, J., delivered the opinion of the court.

The defendant was indicted for an assault and bat

tery on one Murphey. The jury returned a special verdict, finding the defendant guilty, provided Murphey was a duly appointed officer, authorized to levy on defendant's property, but if he was not, then he was

innocent.

The facts are that about two years before, defendant had been sued before a justice and judgment had; after this lapse of time the plaintiff in that judgment made application for an execution, and filed a proper affidavit for the appointment of Murphey as a special constable to execute it. In the attempted execution of this process the difficulty occurred.

The case turns on the proper meaning of section 4148 a of the Code, act of 1869-70. By the Code

State v. McKittrick.

as it then existed, section 4148, it was provided: “A justice may, in writing, specially depute any discreet person of full age, not being a party, to perform any particular duty devolving upon a constable, if no constable is at hand and the business urgent."

The act referred to, however, section 4148 a, amends the above section as follows: "A justice may, in writing, specially depute any discreet person of full age, not a party to the suit pending, to perform any particular duty devolving by law upon a constable, if ne constable is at hand and the business is urgent; but no magistrate shall make such special deputation unless one of the parties to a suit pending, a suit pending, or his or her attorney shall make oath," etc.

The only feature of amendments to the former law is to limit the power of the magistrate, to the case of a suit pending. What good reason there may have been for this we may not clearly see, but so it is declared, and we have but to enforce it.

There was no suit pending in this case. It had been ended two years before and a final judgment had-which only remained to be executed. His Honor so ruled, and we affirm his judgment.

Riddick v. Turpin.

A. J. RIDDICK v. J. H. TURPIN et al.

HOMESTEAD. Abandonment. Case stated. In 1873 A sold, without the concurrence of his wife, who had deserted him, taking their only child with her, and was at the time residing at her father's, a tract of land, at the time under lease to a third party; A assigned the purchase notes and the assignees filed a bill to enforce the lien and obtained an order of sale, whereupon A filed a bill to obtain homestead in the land. Held, A is not entitled to homestead. Quere. Is the wife?

FROM CROCKETT.

Appeal from the Chancery Court at Alamo. JOHN SOMERS, Ch.

GOODLOE & MAHON for complainant.

BUCHANAN & COOPER for defendants.

FREEMAN, J., delivered the opinion of the court.

The facts of this case are, that in March, 1873, complainant owned a tract of land of about 140 acres in Crockett county. This land he agreed to sell and did sell to F. M. Riddick, and gave him a bond for title the consideration being four notes due yearly from date of sale, each note being for upwards of $1,000.

These notes were transferred to Turpin, and Hardin & Avery, to the former as part of the purchase money of a house and lot in the town of Bell's Depot, to the latter as collateral security for a debt due from Riddick & Son. The holders of these notes have filed

Riddick v. Turpin.

their bills to enforce the vendor's lien, and obtained a decree ordering said land sold. This bill is filed by complainant, the original vendor, to assert his right to homestead, charging that he is the head of a family, lived on the land at the time of the sale, and his wife did not join in it, or have any connection with it whatever, and that he never, in any way, abandoned said claim.

This is all denied in an unsworn answer, at least so far as the main allegations are concerned.

The proof shows this state of facts. That at the time of selling the land,. the complainant and his wife had separated-she having, for some cause, abandoned him, as he says, on account of disagreement as to family matters, and she had gone to her father's to live, taking her child, then quite young with her. She has continued thus to live up to the present. The child, since it was five or six years old, say for the last few years before this suit, had been permitted to visit the father, and probably stayed with him onethird of the time. He surrendered possession of the place to the purchaser, though he seems not to have actually occupied it until 1874, it having been rented out at the date of the sale, in March, 1873, for the year.

The only question is whether the husband, on this state of facts, is entitled to assert a right to homestead to the land thus sold.

He was not occu

We hold he is not so entitled. pying it with his family as such; at date of the sale it was rented out, and the wife had left his home as

Carroll v. The State.

indicated by the proof, with no

purpose to return. He surrendered his right to possession, and has not occupied it as a homestead or his permanent residence since, having been on it permissively as a tenant only for a time. We confine this decision strictly to the facts of this case.

What may be the right of the wife in the premises we do not decide, but only that on these facts, the husband alone cannot, as against his vendee or the holders of the paper for purchase money in this case, assert by this proceeding a right to homestead. chancellor so held, and we affirm his decree with costs.

The

CARY CARROLL v. THE STATE.

SUPREME COURT PRACTICE. Reversal. The manner of the examination of witnesses is left largely to the discretion of the trial judge, and the Supreme Court will not reverse unless it affirmatively appear he has committed error. It is not error for the trial judge to say to counsel, in the presence of the jury, that he is treating a witness unfairly and harshly. and that there was nothing wrong or improper in her conduct to justify such treatment, where it is plain such remark had referenee to the demeanor and not to the testimony of the witness.

FROM SHELBY.

Appeal in error from the Circuit Court at Bartlett. THOS. D. ELDRIDGE, J.