The jury found, for plaintiff .$100 penalty, and $80 damages. The defendant brought its bill of exceptions, alleging that the court should have required plaintiff either to p ut in evidence the original telegram, or to have properly accounted for its non-production, before allowing proof of it by secondary evidence. It also assigned error upon the following instructions of the court to the jury, alleging that they were unwarranted by the evidence, and that the evidence did not entitle the plaintiff to recover : “ If you believe the evidence sustains plaintiff’s cause of action, you are authorized to find for the plaintiff the penalty claimed in the declaration, to wit $100. If you do uot so believe, you should find for defendant If you believe the evidence sustains plaintiff’s cause of action as to special damages, you should find also for plaintiff' such an amount as will compensate him for whatever loss he sustained because of the failure to deliver the telegram, as may be shown by the evidence. If you should not so believe, you should not find as to special damages.”Big-by, Heed & Berry, for plaintiff in error.Clay & Blair, contra.
