1. The court certainly did not abuse its discretion in granting a new trial. The view which we take of the plaintiff’s obligations to the public in reference to instituting a prosecution or- going as far as practicable in that direction, are stated in the first head-note. That the guilty party has fled from justice is no obstacle to commencing a prosecution, and if duly commenced, the state would take care that it was carried on as soon as practicable. For some sufficient reason, it is the policy of the statute not to allow the injured party, in a case of felonious homicide, to become absorbed in his or her own private concern for redress, and take no active part in putting the public justice of the country in motion against the offender. Special cases may furnish a good excuse for departure from this general rule, but the excuse must be alleged, and to allege it without proving it would be idle. Moreover, it must be a good, and rational excuse, one that a fair and candid mind could accept. No strained, or fanciful excuse should be accepted. Mere hardship is not enough, for the law lays the obligation as a burden upon the party, with a view to constrain a prosecution, as a condition to obtaining private redress. The action for homicide is statutory, and is given on terms. The terms must be complied with. Either a prosecution or an excuse must be alleged and proved. The law wants the passions and interests of those who suffer by felonies to become enlisted in behalf of the public, so that great offenders may be punished. The private injury is not merged in the felony as it was formerly, but the two are so coupled together, that the private action is not to.be fruitful without a public prosecution, if by any reasonable diligence the commencement of a prosecution be practicable. Section 2970 of the Code *572reads thus: “If the injury amounts to a felony, as defined by this Code, the person in jured must either simultaneously, or concurrently, or previously, prosecute for the same, or allege a good excuse for the failure so to prosecute.” It may be that by force of the word “concurrently,” a prosecution commenced pending the action, would suffice, if alleged by way of amendment to the declaration, and proved on the trial. But the facts of the present case do not call for a decision of this question.
2. As we construe the act of 1870, under which the Western & Atlantic Railroad was leased, and the lessees incorporated, the corporation is made subject to suit in any county in which the road is located. It seems to make no difference that the cause of action accrued from a tort committed in another county than that in which the suit is brought, and that a part of the line of road is in such other county.
Judgment affirmed.