In an action against a telegraph company for the recovery of the statutory penalty, a declaration alleging that the company held, and permitted a message delivered to it for transmission “ to remain there in the sending office, or in the receiving office,” for a period of about thirty-six hours, and that “said company was-grossly careless and negligent in the delivery of said message ” to the plaintiff, and “ that for said gross negligence and disregard of duty said company became liable to pay [the plaintiff] the penalty of $100, as the statute provides,” sufficiently charged a want of clue diligence on the part of the defendant. It was, moreover, the right of the plaintiff to amend by alleging in terms that the company failed to deliver the message “ with due diligence.”

Judgment reversed.

*442Action for penalty. Before Judge Hutchins. Clarke superior court. October term, 1898.