
    Rhoderick McKenzie, plaintiff in error, vs. Lemuel T. Downing, Ex’or., defendant in error.
    To oomplete a gift, mortis causa, there must Re a delivery of tho 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 Avas signed by McKenzie, and Avitnessed by the parties, Avhose 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 oe Scotland.
    Attested by,
    Wm K. Moore, attorney at law, Dalton, Ga.
    
    F. C. Ellison, M. D., Columbus, Ga.
    
    J. D. Hamilton, Stone Mountain.
    
    
      McKenzie said but little, except to dictate how he wanted the check written. He was very weak and feeble, talking very seldom, and then in whispers; making himself understood principally by sighs. . 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 ¿£407,17d,3s; and the check, drawn by McKenzie, would have been good for that amountlonly.
    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 non-suit, 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. payee to the money, -on his death.' In that hé was mistaken, and however, mahífést his inténfi'on 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-giveh;

Judgment affirmed;  