
    Sarah Pitts v. Samuel Gilliam.
    1. Continuance. In the discretion of the Court. Continuances are in the discretion of the Court helow, and the action of the inferior Courts in granting or refusing continuances, will not he reversed unless it clearly appear that there has been a very great abuse of this discretion.
    
      2. Estoppel. Acceptance of the provisions' of a deed. A party is estopped from eyer denying Ms liability upon a note, after the execution of a deed of trust to secure said note, and the acceptance of its provisions. Thus, if the name of a person is forged to a note, and the maker of the note execute a deed of trust to secure the payment of the same, and in a controversy as to the validUy of said deed, such person file an answer insisting that the deed was Iona fide executed, and claiming the indemnity given thereby, he is ever after estopped from denying his liability upon the note, and could not rely upon the plea of non estfactum.
    
    PROM GILES.
    This cause was heard at the December Term, 1857, MartIN J., presiding. There was judgment for the plaintiff. The defendant appealed.
    Thomas M. Jones, for the plaintiff in error,
    cited and commented upon the act of 1819, ch. 27, § 4; Garter v. Vaulx, 2 Swan, 641; Goodman v. The State, Meigs’ R., 194; Turleville v. By an, 1 Hum., 112; Boyd v. Dodson, 5 Hum., 87.
    J. C. Walker and H. Ward, for the defendants.
    Did the Court err in not continuing the case at the December Term, 1857, upon the statements of Watson and Geo. W. Pitts? It is insisted that it did not.
    Continuances of causes rest in the sound discretion of the Judge trying the cause. And if the authority of the Court of Errors were often interposed to prescribe or reform the rules of the Circuit Court practice, the interest of the public would not, it is believed, be generally promoted thereby. Rhea v. The State, 10 Yer., 259; Wyatt v. Richmond, 4 Hum., 365; Jarnagin v. Atkinson, 4 Hum. 470; Bellew v. The State, 5 Hum., 567.
    The Circuit Judges have a full view of all the circumstances which ought to influence them in disposing of motions for continuances; but it is difficult to communicate those circumstances for the inspection of the Court above. This Court will not reverse what the Circuit Court does in relation to a continuance, unless it clearly appears that the Court below erred. Cornwell v. State, Mar. & Yer., 147-151.
    But if the plea of non est factum had been put in by the defendant, could it have availed her any thing? It certainly could not. If her name had been signed to the note without her authority, she had ratified it by accepting the deed of trust made by Ananias Pitts, the principal in the note, in which deed of trust the note to Wilson was described, and the defendant named as one of the securities on said note. And the defendant in her answer, filed in the Chancery Court, and sworn to, set up her claim to a benefit under said deed of trust, and alleges in her answer, that said deed of trust was made honestly and fairly, and to secure the just and bona fide creditors of the said Ananias Pitts. This is most assuredly a ratification of the note by the defendant, and that she was bound on the same as co-security with the"’ plaintiff. Jones v. Hamlet, 2 Sneed, 256; Fitzpatrick v. School Com’rs, 7 Hum., 224.
    If the note was not under seal, a parol ratification would be sufficient; but in this case there was a written ratification, by accepting the deed of trust, and filing and swearing to her answer in Chancery; and this is sufficient, if the note was under seal. Cady v. Shepherd, 11 Pickering, 403-407; Mackay v. Bloodyood, 9 Johnson, 285; 19 Johnson, 554.
    A. M. Wilson describes the note, and shows that it is the same note mentioned in the deed of trust. He had but the one note against the said Ananias Pitts as principal, and the plaintiff and defendant as his securities, and parol evidence is competent to show that the note mentioned in the deed of trust is the same note upon which the plaintiff and defendant were bound as securities, &c. 7 Hum. K.., 225, 226.
   CabutheRS, J.,

delivered the opinion of the Court.

At the April Term, 1857, of the Circuit Court of Giles, Gilliam moved for judgment against Sarah Pitts for $737.50, being the one-half of a judgment and costs for which plaintiff and defendant were liable, as is alleged, as the joint sureties of one Ananias Pitts, on a note to A. M. Wilson, administrator of Hiram Young, deceased, for $1,346, due the 12th of December, 1855.

It appeared that the judgment had been obtained against the principal, Ananias, and Gilliam — the said Sarah not having been sued — and that, in consequence of the insolvency of Ananias, the same had been paid by Gilliam to the sheriff of Giles, on the 25th of April, 1857, when it amounted to $1,458.63. The note is in these words:

“ Twelve months after date, we, or either of us, promise to pay A. M. Wilson, administrator of Hiram Young, deceased, thirteen hundred and forty-six dollars, for 63,000 pounds of seed cotton.
“ Witness our hands and seals, this 12th December, 1854.
“ A. PITTS, [SEAL.]
“ SAM’L GILLIAM, [seal.]
“SARAH PITTS, [seal.]”

A jury was empanneled to try and determine whether the defendant, Sarah, was joint surety with the plaintiff in said note. They found that she was, and judgment was entered against her for the one-half paid by plaintiff. She appeals, and now assigns errors in the proceedings and judgment.

1. The Court refused to continue the case at the term at which it was tried, upon the affidavits of George Pitts ánd James Watson, showing that the defendant was desirous to put in and rely upon a plea of non est factum in the case, and that she was not able, in consequence of sickness, to attend the Court for the purpose of swearing to the same. • The case had been continued, “ as on affidavit of the defendant,” at the previous term. Continuances are in the discretion of the Court, and we would not reverse its action upon such motions, unless it clearly appeared to us that there had been a very great abuse of this discretion. We see nothing in the record to make out such a case; but, as it turns out upon the trial, such a plea would have been of no avail to her, and, consequently, she has. sustained no injury, as will appear under the second objection taken to the action of the Court. It is not controverted, of course, that this motion against her for contribution would be defeated if she could rely upon and maintain such a plea.

2. The defendant was not allowed to introduce proof to show that she had not signed the note, but that her name was forged. This was right, even if her plea of non est factum had been regularly filed upon oath. Her son, the principal in the note, had previously made a deed of trust for the benefit of his creditors, and, among others, this debt was provided for, and described as a note upon which the plaintiff and defendant were his sureties. In the answer of defendant to a bill against her and others, in relation to this deed, she referred to and claimed the benefit of it, and insisted that the deed was bona fide, and the debts secured, just. She, as one of several joint respondents, swore to the truth of the answer. This would unquestionably estop her from ever denying that she was properly bound upon the note, or that she and plaintiff were joint sureties upon it. If she had not accepted the deed it would be different. But here was an acceptance in the most solemn form, by a deliberate answer, in a judicial proceeding, upon oath.

We have decided in another case, at the present term, that a stayor of execution, under circumstances that would not bind him in law, who has accepted a deed of trust for his security, is placed under an estop-pel, and cannot resist his liability, though his undertaking was utterly void.

The same principle governs this case, and deprives the defendant of the proposed defence.

The judgment will be affirmed.  