Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-04-23
Sarah Pitts vs.. samuel Gillian

NtAi+Aa--
At The April terms 1857, Of the circuit eourt a
! Giles, Gillian moved for Judgment sgainst SsraL
Pitts for S7S7 80 being the one-half Of judgment
and costs for which Ilainiif snd defendant were
liable, as is alleged, the joint sureiies fer Gre
Ananias Pitts on n note 10 A. M. Wilson, admiuis
traitor of Hiram Young, deed for 81 $40. dae 12ih
December 1855 IL appears that the judgment had
been obtained against the prineiPal, ADanias q d
GlEam, the said Sarah not having sned, aud
that. in consequences Of the ia veney ef Ananias.
The same had been paid by Gillian 20 the Sheriff Of
Giles 25.h April. 1857, When it auounte3 70 ST.
1850 The note IS il these words:
sTselvs months after date we, or either Of az,
promise 70 pay A. NJ Miller, administrator of Hiram
YOusg. dec thirteen hundred and forty six dollars,
Tor ,0C0 POUNDS Of seed cotton.
'sRitness our lals aud seals his 18th Dec, 1854
"a. PuTs, [seal,
eSAaUEIe GILLIAN seal ]
'SARAH riTrs, Lseal T.
A jury was empanuelled to try and de.ermine,
vhejhsr The defendant Sarah was jOiat surely with
the plaintiff in ssid note They found that she was,
aud judSme was entered against her FIR he one
halt pail ty aintiff. She appe is, and now as
signs error in he proceedings and judgment.
l. The court refused to continue the case at the
term at Ehiek it was tried upon the aiidIvits of
George PIT AMI James Waisoo, showing that tbs
defendant DESTROYS to put in, and rely upon, a
plea Of fsefgm in the case, and that she was
not able in eonst quenee Of sickness to attend the
court for the purpose Of swearing TO the same. The
case Is been ided 'aso affidavit Of the defend
ant al the previous term Centinuances are in he
discretion CT the court, and Woullno reverse Bp1n
the ground Of bis action upon such mo i1us un.e's
il eie1riy app ard to u, that there bad been Vsry
great abuse Of this discretion. We Sea no hiYg ia
the record TO make Gu such CT se, bu' as it turns
out upon the trial such plea would hare been Il no
avail. TO her, and consequently she has sustained
injury as will appear under the the sreold
taxi n M If he ia
confrOverted Of course, that this motion against
Der for contribution would be defeated If she could
rely upon and MAINTAIN such plea.
?. The defendant vas not allowed to introduce
proof 10 show that che had not signed he note, but
ihst her name was Forged This was right, even if
her plea of est factum had been regularly fed
upon oath. Her sen, the principal in the note had
previously made deed OF trust for the benefit Of
HIS creditors, and among others this debt pro-
7id7d for and described, as q note upon which the
plaintiff and defendant we're his sureIies. Ia the |
answer Of defendant TO bill against her ar others
relation TO the deed she referred to, and claimed
he benefit Of il, and insisted that the ed bona
fds, and the debs secured just She as one of sew
raj int respondents. swore to the truth of the
answer This would u1Ques iorably est p her from I
ver denyng that she was properly bound upon the
tote, that she and plaintiff were joint sureties
pOn it. If she hal accepted the deed, it would
,s different Bat here vas an acceptance in the
nost solemn fOrm--by deliberate answer in ju-
icial proceeding upon oath.
We have decided in another case st the present
ERIN that slayer o. execution, under cireum~
tapces that would not bind him 10 Law, who has &C
opted a ed Of trust for his security Is placed
r estoppel and cannot derry resist bis liabi-
?, though MS undertaking was utterly void
The principle governs this e1se, aad de-
ri7es ;he defendant Of the proposed drferee The
ID gment will be affirmed. CAEUTHERs-
A correct copy, J. CLARK, Clerk.