After two continuances hare been granted to the same party, if a mistrial intervene, his application for another continuance is treated as an application for a third continuance.
Upon an affidavit by the defendant to continue the cause, it appeared that a mistrial had taken place at the last court. It was insisted, that, by the defendant's coming to trial at the last term, it showed his willingness to have a determination, and excludes the idea of evasion in this application. Though there were two continuances by the defendant before the mistrial, the defendant ought to stand in the same situation as if this were the first application. The mistrial merged all antecedent continuances.
By the Court:
This must be considered as an application for a third continuance.