the military to take the cars and throw such freights
out, and that he believed defendant knew of the risk,
and that he had to take it. It further appeared that
the car loaded with plaintiff's goods at Dalton, con-
sisting of a wagon, two mules and a horse, was found
next morning in Atlanta, loaded with Confederate
horses, a part of the wagon found lying near the de-
pot at Dalton. Upon this statement of facts, the
Judge charged the jury that the stipulation in the
receipt, that the property was shipped at owner's risk,
was no protection to the road unless the property was
proven to have been taken by the Confederate army
from the cars, and the jury found for the plaintiff,
and the Court below refused a new trial:
Held, That the charge of the Court, under the facts,
was too narrow a view of the law providing for ex-
press contracts by railroads; that while the general
proposition of law laid down is in the language of
the Code, there were facts in this case arising not
only from the presence of an army, but the character
of the receipt given, and the evidence of the agent
as to plaintiff's knowledge and consent thereto, which
ought to have been submitted to the jury under the
evidence, to say whether or not he had knowledge of
the contents and consented thereto; for this would
limit the liability, if the jury believed from the evi-
dence that it was an express contract. And whether
it was or was not, was a fact for the jury, which
ought to have been submitted to them under all the
evidence in this case. Wallace, Superintendent, vs.
Sanders....
4. Held, again, If the jury were satisfied, from the evi-
dence, that the car was taken by a superior force,
which the defendants could not resist, still it was the
duty of the Court to instruct the jury touching the
requirements of care of the goods by the defendants
after they were thrown out of the car, or the existence
of such circumstances as prevented its exercise, and
that the jury ought to have the whole matter fully
before them, upon the law applied to the facts; 1st,
as to whether there was an express contract between
the parties; and, 2d, as to the care taken, if any, or
reason why it was not done by the defendant or its
agents, relative to the goods, if the jury believed they
were thrown off by the military authorities. Ibid.
5. One who keeps a ferry for his own use and for the
convenience of customers to his mill, but who charges
no ferriage, is not a common-carrier, and is only bound
to ordinary diligence.-Self vs. Dunn & Brown........ 528
CONSTITUTIONAL LAW.
1. An indictment, which alleged the offense to have been
committed on the 13th day of August, 1868, and found
by a grand jury, drawn according to the laws of this
State which existed prior to the adoption of the Con-
stitution of 1868, was a legal and valid indictment,
though found subsequent to the date thereof. Ander-
son vs. The State.......
2. The Act of 1870, declaring a single person to be the
head of a family, is not a judicial construction of the
Constitution; the judiciary, under our government,
is alone empowered to interpret the Constitution and
laws, and, with great deference to the Legislative De-
partment of the State Government, we hold that it
is not competent to enact that a single person living
to himself or herself is the head of a family within
the meaning of Article VIII., section 1, of the Con-
stitution, but the decision of this Court on that sub-
ject is paramount. Calhoun vs. McLendon............. 405
3. That portion of the General Tax Act, of 1869, which
levies, for educational purposes, a specific tax of twen-
ty cents per gallon on every gallon of brandy, gin,
whisky, or rum, whether foreign or domestic, sold by
any person in this State, in quantities less than thirty
gallons, and which provides the mode by which re-
turns shall be made for each quarter of the sales in
every year, and fixes the penalty for failing to make
the returns required, is within the power granted to
the Legislature by Article VI., section 3 of the Con-
stitution, and is not controlled by section 27 of the
Bill of Rights. WARNER, J., dissenting. Kenny
vs. Harwell. Myer et. al. vs. McGowan.....
4. When, in a rule against the sheriff, he answered that
he had not made the money, because the fi. fa. issued
upon a judgment founded on a note given for negro
property, which was admitted on the hearing:
Held, That, while a sheriff is a ministerial officer, and
it is his duty to execute all process placed in his hands,
and let defendants set up their defenses to such pro-
cess, yet, under Article V., section 17 of the Consti-
tution, and Article XLI., section 6, there was no
jurisdiction in the Court, upon such answer, to make
the rule absolute against such officer, and that the
exceptional character of the case and the constitu-
tional inhibition of jurisdiction was protection of such
officer in the premises against rule. WARNER, J.,
dissenting. Rogers vs. Silas et. al.....
5. A retail dealer in goods, wares and merchandise, who
is also a retailer of spirituous liquors, and who has
paid his license as such retailer of spirituous liquors,
to the corporation of the city of Savannah, is not ex-
empt from the special tax laid by the city of Savan-
nah upon retailers of spirituous liquors, nor is such
special tax upon retail dealers generally an illegal tax
under the Constitution and laws of this State. Burch
vs. M. and A. of Savannah...
6. The Act of 1869, which extends the provisions of the
fourth section of the Act to incorporate the Zebulon
Branch Railroad Company (1851-52,) to all manu-
facturing companies and individuals, whether corpo-
rate or not, provided such company or individuals
own both banks of the stream upon which the mills
are to be erected, etc., and provides for the assess-
ment of damages for such taking of lands as may be
necessary, is unconstitutional in its provisions, as ap-
plied to individual owners of mills in this State.
Loughbridge vs. Harris.....
Held, again, Under Article III., section 5, part 1, of
our present Constitution, and the grant of power to
the Legislature to take private property for public
use, that the exercise of this power is one over which
the judiciary have jurisdiction to prevent its abuse.
And to authorize the taking of private property by
legislative act, two things must concur: 1st. It
must be taken for public use only. 2d. It must be
taken only upon provision for just compensation, ex-
cept in urgent and extraordinary cases. And while
we recognize the right of the Legislature to determine.
the necessity of the act, and when it is constitution-
ally exercised, and when it is for the public use, and
provision for just compensation has been made, yet
this is not a power which the Legislature can delegate
to individuals, to erect mills or manufactories any-
where at their option, and in their judgment take
private property for their use; and we do not think
a mill, although it has some of the attributes of pub-
lic use, and is regulated by law for certain defined
purposes, can be regarded such public use as the Con-
stitution recognizes, to authorize the exercise of this
great constitutional power. Ibid.
7. Where A filed his bill against a railroad company,
alleging that they were proceeding to sequester a
spring of water belonging to him a quarter of a mile
of the line of the road, without his consent, and had
laid pipes through his land to obtain it, and were
using the water, and the bill asked for injunction,
etc., and on the hearing the Judge dismissed the bill
for want of equity:
Held, Under the facts alleged in the bill and upon the
construction of the charter of said road, the Court
erred in dismissing the bill, it not appearing that the
water is indispensable and cannot otherwise be ob-
tained, and upon the view that there is, prima facie,
a case made for equity jurisdiction entitling the com-
plainant to a hearing. Strohecker vs. The A. and C.
Railroad Company...
See Continuance, 4, 5, 6.
"Criminal Law, 11.
1. When a motion is made to continue a case for the
purpose of procuring testimony, the Court may re-
quire the showing to be reduced to writing and sworn
to by the party moving the continuance; but if the
opposite party will admit and does not contest the
truth of the facts expected to be proved, the continu-
ance should not be allowed. But it is error for the
Court to overrule the motion for a continuance on the
ground, that the opposite party will simply admit the
facts expected to be proved, and then allow such op-
posite party to contest the truth of the facts admitted.
To avoid the continuance of a case for the purpose of
procuring testimony upon a proper showing made
therefor, under the 3472d section of the Code, the
opposite party must admit, in writing, the facts ex-
pected to be proved, and agree that he does not con-
test the truth thereof. Cheeney vs. Smith & Alexander 50
2. There was no error in the Court below in overruling
the motion for a continuance of the case, on the show-
ing made therefor, (to-wit: that defendant was ab-
sent, when it was not shown what he would testify to
if present. R.) White vs. Blasland...
... 184
3. The motion for a continuance of the case was prop-
erly overruled on the statement of facts contained in
the record, to-wit: the absence of the party. Ponder
vs. McGruder.....
4. Where a case was continued at the first term for
providential cause, and before the succeeding term
the plaintiff in error died, and there was no repre-
sentative of his estate, and when the case was called
upon the docket, the death of such plaintiff was sug-
gested, and motion was made to dismiss the case upon
the ground that the constitutional provision requir
ing the Supreme Court to dispose of every case at
the first or second term after writ of error brought,
was imperative, and that the Rule of Court, where
its application extended the hearing over or beyond
the second term, was in violation of the Constitution:
Held, That the mandate of the Constitution relative to
the disposition of cases, did not apply to such as fell
within the rule of providential cause; that by the
Act of organization of this Court, and the Seven-
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