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Irby 18. Livingston et al.

curities held by him for the payment of the debt; and one of the securities which the State held for the payment of this debt, was a lien upon all the property of the principal at the time he gave this bond. We think that when these sureties paid off this debt to the State, they were subrogated to the right of the State as to this security—the lien upon all the property of this tax-collector at the time he gave the bond. It passed to them, under these sections of the code.

The case of White vs. The State, 51 Ga. 252, referred to by counsel for the plaintiff in error, does not apply to this case. That decision was to the effect that, while there could be no judicial interference with the State when seeking to collect its taxes by virtue of an execution, yet where the execution had passed into the hands of the tax-collector, who had settled with the State and paid over the amount sought to be collected from the delinquent tax-payer (the defendant in execution), the tax-collector stood simply in the position of a citizen, and the defendant might resist the execution by judicial interference.

We think that the case of Livingston et al. vs. Anderson, decided at the last term of this court, (80 Ga. 175,) is in point in this case. It is in effect what we now decide. In that case this court held that, inasmuch as na writ of execution had been issued against the tax-payer who was in default, the sureties of the tax-collector (who had been compelled to. make good the default of the collector in not collecting and paying over these taxes) could not compel the State or its officers to issue execution for the use of the sureties entitled to reimbursement; but that the suretics could obtain relief in equity against the defaulting tax-payer. The right of subrogation does not apply as to the remedies which the State has against the citizen, but as to the security which

Clay vs. The Western Union Telegraph Company.

the State has; that security passes to the citizen or to the surety who pays off a debt under such circumstances as these; and for the purpose of reimbursing himself, he has a right to enforce the execution issued by the State.

As Mrs. Irby bought this property of the defaulting tax-collector after this bond was given and after the lien had attached to the property, she took the property subject to the lien, and subject to the right of these sureties to have the property levied on and sold for the purpose of reimbursing themselves. They stood in the shoes of the State as to this matter; and we think, therefore, that the court below was right in holding as it did; and the judgment is affirmed.


1. Clay brought suit against the telegraph company, alleging that, by

the negligence of the company, a telegram sent to him was not delivered in time for him to meet a train, whereby he lost a certain sum which he would have made as profits if he had received the

telegram at the proper time : Held, that a demurrer to the declaration was properly sustained, it ap

pearing that he lost nothing more than a mere opportunity or pos

sibility to make something. 2. The court, in this case, was authorized to sustain the demurrer

without going into the question of whether the company was liable for the non-delivery of the message. May 28, 1888.

Telegraph companies. Non-delivery. Damages. Profits. Demurrer. Before Judge JENKINS. Bibb superior court. November term, 1887.

J. J. Clay sued the Western Union Telegraph Company, alleging as follows: Said company, being a body corporate and politic and doing business in this State,

Clay rs. The Western Union Telegraph Company.

and engaged in receiving and transmitting messages on
its wires for profit, and having an office in the city of
Macon, had damaged him $500.00; for that, on Janu-
ary 8th, 1885, at about five o'clock P. M., at Bullard's
Station, about seventeen miles from Macon, on the East
Tennessee, Virginia and Georgia railroad, where it had
an office, said company received for transmission the
original message (of which a copy is set out in the de-
cision), the charges upon which, at full rates, were paid
by the sender in advance. Said company should, as it
undertook to do, have delivered the message within
twenty minutes or half an hour, but by the gross care-
lessness and negligence of its agents and servants, the
message was not delivered until about 8 o'clock A. M.
on January 9th, 1885, long after the hour at which the
train left for Indianapolis, and when it was impossible
for plaintiff to attend to and receive the benefits of the
commission conveyed in the message. Plaintiff is an
undertaker and the services required of him in the
message were in that capacity, and the profits thereof,
which were lost to him by defendant's negligence,
amounted to $500.00. Plaintiff has been, by said neg-
ligence of defendant, greatly damaged in his business
as an undertaker, whereby defendant became and is lia-
ble to pay him the sum of $500.00, as aforesaid, which
sum it refused and still refuses to pay, etc.
• This declaration was demurred to orally on the
ground that it set forth no cause of action. The de-
murrer was sustained and the plaintiff excepted.

S. A. REID, for plaintiff.
GUERRY & Hall, for defendant.


It appears that a telegram was sent to Clay, the plaintift, as follows:

Clay rs. The Western Union Telegraph Company.

“BULLARD's, Ga., Jany. 8th, 1885. “To J. J. CLAY: Meet us at E. T. depot on this evening's train prepared to arrange for shipment to Indianapolis my mother-in-law's reremains. (Signed)

D. G. HUGHES." The telegraph company failed to deliver this telegram in time for Clay to meet the train and comply with the directions of the sender. Clay brought his action against the company for damages.

We cannot see, from the allegations in the declaration, how Clay was damaged. It does not appear that he suffered any damage. It appears that he lost a mere opportunity or possibility to make something. If he had received the telegram, and had appeared at the depot in time to meet the remains, and if Mr. Ilughes had declined his services, all that he could have recovered from Hughes would have been his expenses and a proper compensation for his trouble in getting ready to perform these services. Çlay did not go to meet the remains, and did not spend anything on this account; he was in the same condition after receiving the telegram that he was before; no loss came to him. It is contended that if he had received the telegram, he would have made a considerable amount of money as profits from services rendered. He might have made it, or he might not. As stated, this was merely a possibility. Under the allegations in the declaration, we do not think he had any right to recover damages ; and that the judge did right to sustain the demurrer to the declaration.

As to whether the telegraph company is liable at all for non-delivery of the telegram, we say nothing as to that at this time. There was plenty to authorize the court to sustain the demurrer, without going into that question at all.

Judgnient attirmed.

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Hamer 18. Sears et al.

HAMER vs. SEARS et al.

1. There is no equity in complainant's bill. 2. A judgment rendered on the fourth day of July is not void. Al

though that day is a legal holiday, and some things, such as noting and protesting of notes, etc., may not be done upon it, there is no statute prohibiting the transaction of business by the courts on that day. June 1, 1888.

Equity. Holidays. Judgments. Before Judge SMITH. Muscogee county. At Chambers, April 7, 1888.

W.J. Hamer filed his bill against W. H. Sears and the sheriff of Muscogee county, alleging as follows: Complainant was the security for his brother, A. Hamer, on a promissory note given Sears. Though the note does not recite the consideration for it, it was really given for a bay horse. After the giving of the note, over the objection of complainant and without his knowledge, Sears aided A. Hamer to trade the horse for a grey mare; and afterwards, over complainant's objection and without his knowledge, by the consent of Sears, A. Hamer took the grey mare to Alabama and sold or traded her in some way unknown to complainant. Before, at the time and after the maturity of the note, complainant notified Sears and urged him to sue it and make his money out of the property; that A. Hamer was insolvent, and this was the only property he had out of which the money could be made.

Sears refused to sue, but instead aided A. Hamer to get the property out of the State. Afterwards Sears sued the note, and service was made on complainant by leaving a copy of the declaration at his most notorious place of abode. At the time this service was made, complainant was away from home at work on the Georgia Midland rail

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