
    William Murray, plaintiff in error, vs. C. H. Phinizy & Co., defendants in error.
    Where a motion for a continuance is based on the want of mental capacity in the defendant to take the necessary steps to defend the suit and to plead to the same, and the evidence as to such incapacity is conflicting, the discretion of the court below, exercised in overruling the motion, will not be controlled.
    Continuance. Before Judge Rice. Oconee Superior Court. July Term, 1876.
    Reported in -the decision.
    Emory Speer, for plaintiff in error.
    Pope Barrow ; Leonard Phinizy ; A. S. Erwin, for defendants.
   Warner, Chief Justice.

This was an action brought by the plaintiffs against the defendant, on a promissory note for the sum of $12,240.98, •dated 24th of February, 1875, and due one day after date. When the case was called for trial, the defendant, by his counsel, made a motion for a continuance of the same, and for time to plead thereto, on the ground that, for the last five years, the defendant had been incapable of managing his own estate by reason of imbecility of age, he now being eighty-six years old; that he had not sufficient intellect to comprehend his legal rights and liabilities, or to take the necessary steps to defend said suit, etc. The court, after hearing evidence as to the defendant’s mental capacity (which was conflicting), overruled the motion for a continuance of the case, but granted to the defendant reasonable time to plead to the plaintiff’s action, which the defendant, by his counsel, declined to do, and the court entered up a judgment for the amount of the plaintiffs’ demand; whereupon the defendant excepted.

Itch, as the evidence was conflicting as to tbe de.c’s mental capacity, we will not interfere to control Discretion of tbe court in refusing to grant tbe motion ”r a continuance of tbe case. Besides, it is not very apparent to us wby tbe defendant did not bave as mucli mental capacity to direct bis counsel to file his pleas to the plaintiffs’ action (if he bad any meritorious defense thereto), as be bad to direct bis counsel to prosecute his writ of error to this court.

Let tbe judgment of tbe court below be affirmed.  