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Geiger vs. The State.

We think, then, that the Court below was right, in holding the set off barred by the statute of limitations.

That Court also held, that the answers ought not to be read, because they would criminate the party making them, Bar

nett.

[2.] The decision of the other question, being such as it was, renders it unnecessary to decide the question here arising. Still, we think it proper to say, that we regard this ground as insufficient. True, the Act of 1764, says, that persons liable to be sued under it, shall be obliged “ to answer upon oath such bill or bills in Equity, as shall be preferred against them; and the answers in this case were not answers to a bill in Equity, but, to interrogatories propounded under the late discovery Acts; yet, according to those Acts, the answers they provide for, “shall be evidence at the trial of the cause, in the same manner, and to the same purpose and extent, and upon the same condition in all respects as if the same had been procured upon a bill in Chancery for discovery." Cobb Dig. 465, 726.

Judgment affirmed, but not on this ground.

RANDAL C. GEIGER, plaintiff in error, vs. The STATE OF

GEORGIA, defendant in error.

In cases on the criminal side of the Court, in which defendants are entitled to a trial

on demand, the presiding Judge cannot order a mistrial but for providential cause &o., without the consent of the defendant.

Assault and Battery, from Randolph county. Tried before Judge KIDDOO, May Term, 1858.

Geiger vs. The State.

It appeared that a jury was empanneled, and qualified to try Geiger at the Term at which the bill of indictment was found, a demand for trial made by him in the usual manner, and no trial had; and no trial was had at the Term next succeeding, though there was a jury empanneled and qualified to try him and a demand for trial, made in the usual manner, again placed upon the minutes. His counsel then moved that he be absolutely discharged and acquitted of the offence charged in the indictment and the motion was refused by the Court upon the ground:

That the defendant had been granted all the trial in the power of the Court to give him, the jury having made a mistrial at both Terms of the Court, and that neither time was the Court bound to grant him any further trial.

The case then proceeded to the jury and again a mistrial made, the said Judge each time dismissing said juries before finding a verdict, and without the consent of defendant or his counsel.

The defendant's counsel excepted to the refusal of the Court to discharge said defendant, and thereupon assign error.

TUCKER & Beall, for plaintiff in error.

(Solicitor General) HARRALL, for defendant in error.

By the Court-McDonald, J. delivering the opinion.

At each Term of the Court at which the plaintiff in error demanded a trial, he was put on his trial, but the Court each time dismissed the jury, before the finding of a verdict, and ordered a mistrial. The record does not disclose any cause for ordering a mistrial at either Term of the Court. This Court has held that the Court may, ordinarily, at its discretion, di. rect a mistrial. ( A case in which the defendant has a statu. tory right to a trial, however, forms an exception. In that case the consent of the defendant must be had, or the mistrial must be the effect of inevitable accident; such as the death

MoKenzie vs. Downing, ex'or.

or sickness of the Judge or one or more of the jury, &c., &c.

The provision of the statute was intended to secure to defendants a speedy trial, and confers on them a right which the Court can neither control nor withhold.

Judgment reversed.

RHODERICK McKenzie, plaintiff in error, vs. LEMUEL T. Down

ING, Ex'or., defendant in error.

To completo a gift, mortis causa, there must be a delivery of the thing given.

Trover, from Muscogee county. Before Judge Bull, May Term. 1858.

It appeared upon the trial that Kenneth McKenzie, a day or two after making his will, said to Dr. Ellison his physician, that in arranging his business he had forgotten an important matter, and feared it was then too late to arrange it, that it was in regard to some money he had in Scotland. Ellison told him it was not too late, and sent for Wm K. Moore, who came and wrote, at the dictation of McKenzie, the following check which was signed by McKenzie, and witnessed by the parties, whose names appear.

“INVERNESS, 8 July, 1854. Pay to Rora McKenzie or order four thousand pounds sterling or whatever balance there may be remaining in the bank due me at this time.

K. MCKENZIE
To the MANAGER of the BANK OF SCOTLAND.

Attested by,
WM K. Moore, attorney at law, Dalton, Ga.
F. C. Ellison, M. D., Columbus, Ga.
J. D. HAMILTON, Stone Mountain.

McKenzie vs. Downing, ex’or.

McKenzie said but litte, except to dictate how he wanted the check written. He was very weak and feeble, talking very seldom, and then in whispers; making himself under. stood principally by signs. After signing the check it was in the hands of Ellison, who asked McKenzie what he should do with it, and he either looked towards or pointed to his trunk, in which were his clothes and his will he had made the day before. Ellison asked him if he should place the. check with the will; and McKenzie assented by bowing his head. It was then placed in the trunk and delivered with the same to L. T. Downing, who was appointed executor by the will

James Lyne and Robert McKennon testified, they were agents and accountants of the Bank of Scotland, at Inverness, that the amount to the credit of McKenzie, in said bank was £407,170,38; and the check, drawn by McKenzie, would have been good for that amount only.

It was admitted, a demand for the check had been made of the executor and that he refused it, that Rhoderick and Rora are the same person, that Rhoderick is the only brother of K. McKenzie; that at the date of the check he was and is now a citizen of Scotland, and that L. T. Downing is the executor of K. McKenzie, and the check in his possession.

Plaintiff here closed his case and defendant moved a nonsuit, which motion the Court sustained; whereupon plaintiff's counsel excepted and assign error.

G. E, THOMAS; and R. WATSON DENTON, for plaintiff in

error.

L. T. Downing, for defendant in error.

By the Court.—McDonald J. delivering the opinion.

There was no delivery of the check to the payee or to any one else for him. It remained in the custody of the drawer. It is presumed that he supposed it was sufficient to entitle the

Richardson T&. Roberts.

payee to the money, on his death. In that he was mistaken, and however, manifest his intention it cannot be carried out, consistently with a wise rule of law, which requires for the completion of a gift of this sort a delivery of the thing given.

Judgment affirmed.

William RICHARDSON, plaintiff in error, vs. MARY JANE Rob

ERTS, defendant in error.

A verdiet is not to be set aside on the ground that it was obtained by perjured

evidence, unless it appear to the Court, that the verdict could not have been obtained without that evidence.

Equity, from Crawford county. Decision by Judge LAMAR, at chambers.

The complainant filed a bill for relief and injunction, alleging that a verdict had been obtained against him in the Superior Court of Crawford county, at the instance of defendant, in an action on the case for words, by the wilful and corrupt perjury of Nathaniel Griggs, a witness sworn in said case for the plaintiff; that it was not until after the final judgment in said case had been rendered, that complainant ascertained that he could prove that the testimony of Griggs, on said trial, was false, by several witnesses, whose depositions complainant attaches to his bill, and fully makes out the allegation of perjury on the part of Griggs. Complainant, at last term of the Court, preferred an indictment against Griggs, which was returned, true bill for perjury committed on the said trial; that he intends to prosecute said indictment, and believes a conviction can be had thereon.

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