
    The Western Union Telegraph Company v. Blance.
    1. In an action against a telegraph company for the statutory penalty for failure to transmit and deliver with due diligence, the message actually delivered by the company to the sendee is admissible as original evidence, and is not secondary in its nature. 
      Conyers v. Postal Teh Cable Co., 92 Ga. 619; Western Union Telegraph Co. v. Bates, 93 Ga. 352.
    2. The pleadings raising no issue as to any stipulation with reference to the time or mode of presenting a claim for the penalty, and the record furnishing no indication that any question on that subject was raised or decided in the court below; and the evidence applicable to the issue tried fully warranting the verdict, it is not apparent to this court that there was any error in denying the motion for a new trial. Judgment affirmed.
    
    March 26, 1894.
    Argued at the last term.
    Action for penalty. Before Judge Janes. Haralson •superior court. January term, 1893.
    
      
      See Mathis v. Telegraph Co., ante, 338.
    
   On July 30, 1891, Blance delivered a message at defendant’s office in Cedartown, for transmission to Buchanan and delivery to Craven at that place. Defendant’s agent at Buchanan received the message but forgot to deliver it until he was asked about it three •days afterwards. Suit was brought on June 7, 1892, for the statutory penalty. No plea except that of the general issue appears in the record. Plaintiff intro■duced the message which was finally delivered at Buchanan, and it was received over objection that the original message delivered for transmission had not been produced or accounted for. Afterward the defendant company introduced the original message as received by it at Cedartown. On the back of it were printed the usual statements as to the-terms on which all messages are received by the company, including: “ This company will not be liable for damages or statutory penalties in .any ease where the claim is not presented in writing within sixty days after the message is filed with the •company for transmission.” The jury found for the plaintiff. Defendant moved for a new trial on the grounds that the verdict was contrary to law and evidence; and for error in admitting the message delivered at Buchanan, over the objection stated.

Dorsey, Brewster & Howell and J. M. McBride, for plaintiff in error.

S. L. Craven and Colville & Noyes, contra.  