ily and a year later made his appearance at Rochester, New York, where after a short time he, as Lemuel Brown, married a Miss Nancy Gray.

This lady, however, did not live long, although the particulars of her life and death are shrouded in the mystery which envelopes so much of the life of this strange guest of the American House; the occupant for forty-one years of the room in which I am writing. Meantime it was found that a Lemuel Bruce was known in Posey county, Indiana, in 1818; that Lot. Bene was in Butler county, Ohio, in 1822, and that Lemuel Brown was known in Columbus, Ohio, in 1829.

The logic of events; the similarity of the initials; the identity of the description of the strange biped who thus disappeared and reappeared; the thread of discovery beginning with the memorandum made by R. L. Broome (or found with his effects), and running back to 1793, to the birth of Levi Brewster, justified the conclusion that Levi Brewster had simply changed his name a few times and died as R. L. Broome, and that the heirs of Levi Brewster were entitled to the snug fortune in Col. Robinson's hands.

He accordingly sought and found them. But this pretty and very romantic theory of the rise and progress of Levi Brewster did not satisfy the Broome claimants, who came forward with as convincing proof that the hero of the wide. shirt collar and forty years endurance of hotel life, was really Robson Lovett Broome, the son of old John Broome, of Marietta, and accordingly courts and juries were brought in to settle the dispute.

Things began to look dark for the Brewster claimants, for there were so many breaks in the history of Levi Brewster that much must be left to fancy in the filling of it up; and fancy is not first-class proof as you well know; but at a most critical moment, Col. Robinson discovered the long lost daughter of old John Broome; and she testified that she never had any brother Robson Lovett Broome, nor any brother by any name. That spiked the Broome claimant's guns most effectually. But they rallied, and will prove, or attempt it-that the old lady-claimed to be the daughter of old John Broome is an imposter -a crank-who has not only deceived herself but Col. Robinson as well. And they will show also that Levi Brewster was married in 1816 to a lady in Berks county, Pennsylvania, and by her had one son who still lives, and who, if the Brewster claimants succeed in establishing the identity of R. L. Broome with Levi Brewster, will step forward as the lawful heir which of course he is, having his mother's marriage lines and the certificate of his own birth, and take possession of the estate.

But the Broome men also will prove that R. L. Broome and Levi Brewster became fast friends being fellow soldiers in the army of "Old Tippecanoe," and together during his memorable campaign. That they had many adventures and narrow escapes from the savages, then and in later years, and that Brewster finally was killed

by them, and that the loss of his friend made Broome the moody eccentric I have described.

Last week the case came on for trial here with "an imposing array of counsel" on both sides, Genl. Grosvenor, of Athens, conducting the Broome side of the case-the defense.

When the plaintiffs had got their evidence all in and rested, the defense allowed a decree to be entered for the former, and appealed to the district court. The defense thus gets the plaintiff's case and reveals nothing of the line of defense. Now if this is not a romantic case, you may withhold my salary for two months.

The very peculiar facts and fancies of this case makes it one of the most remarkable in the annals of jurisprudence in this country. The son of Levi Brewster was here during the trial, a man of about sixty, who remembers seeing his father when he was about ten years of age, he having returned for a few days before finally disappearing. The old lady presented as the daughter of old John Broome, of near seventy, was also one of the attractions of Court week.

COMMISSIONERS OF APPEALS OF TEXAS.

THE WESTERN UNION TELEGRAPH Co.

v.

BERTRAM AND MOELLER.

I. The correct rule for the measure of damages for breach of contract is, that a party is liable for all the direct damages which both parties to the contract would have contemplated as following from its breach if, at the time they entered into it, they had bestowed proper attent on upon the subject, and had been fully informed of the facts.

II. In the absence of evidence to sustain the judgment of the court below, sitting as a jury, this court will not let it stand.

III. A bill of lading occupies the same position as other private writing, and its execution must be proven before it is admitted in evidence.

Appeal from Travis County.

Appellee sued appellant in the County Court of Travis County for the recovery of alleged damages occasioned by failure, on part of appellant, to transmit a telegraphic message. Appellant demurred to the petition and pleaded a general denial. The demurrer was overruled and the case tried by the court, and judgment rendered for plaintiffs for $271.88. The defendant appealed.

The petition alleges that on November 13, 1879, defendant was and long had been owner and operator of a line of telegraph connecting the cities of Austin, Texas, and New Orleans, Louisiana, and offered to the public to transmit correctly for hire such messages as might be presented and given them to be sent from said Austin to New Orleans, in each of which it had offices.

That on the 12th day of November, 1879, petitioners were engaged in business as wholesale grocers in said Austin, and desiring to purchase a large quantity of sugar in the New Orleans market, they did, on the morning of the 12th day of November, order from the firm of A.

Thompson & Co., sugar dealers in New Orleans, through their agent in Austin, one Charles Maillott, ninety-five barrels of sugar, to be shipped to petitioners as soon as said order should reach said A. Thompson & Co.. in the course of mail; that at the time said order was given to said Maillott, as aforesaid, the price to be paid for said sugar was agreed upon by and between him and petitioners.

That said ninety-five barrels of sugar weighed 21,751 pounds; that in the afternoon of said 12th day of November, after said order had been given by petitioners to said Maillott, as aforesaid, petitioners received an offer from other and different dealers in sugar to sell them a like quantity and quality of sugar to that embraced in said order given to said Maillott at a price one and one-fourth cents per pound less than that agreed upon by them and the said Maillott.

That petitioners desiring to avail themselves of the decline in the market and of said second offer, at once ordered from said dealers in sugar a like quality and quantity of sugar to that embraced in the order given by them to said agent of Thompson & Co.

That after they had ordered said sugar at the lower price, desiring to countermand the order given to A. Thompson & Co., petitioners did, on the morning of the 13th day of November, 1879, deliver to defendant, at its office in Austin, the following message, to be transmitted by defendant without delay to said A. Thompson & Co., at New Orleans, viz:

AUSTIN, November 13, 1879.

A. Thompson & Co., New Orleans:
Cancel order given Maillott yesterday.

BERTRAM & MOELLER.

That message was written on one of the message blanks of defendants, furnished petitioners for that purpose; that when petitioners so delivered said message they paid in money the price eharged and demanded by defendant for the transmission thereof; that defendant, after receiving said message from petitioners instead of transmitting the same to their office in the city of New Orleans, to be delivered to said Thompson & Co., as they had agreed and bound themselves to do, negligently, willfully and carelessly transmitted and directed said message to the office of defendant in the city of New York, which was not an office on the line through which said message should properly pass in transit from Austin to New Orleans.

That afterwards, to-wit, on the evening of the same day the defendants' agent in New York telegraphed to the agent of defendant in Austin that he was unable to find the firm of A.

Thompson & Co., and requested a more particular address, which said message (from New York) was duly received by defendant at its Austín office on said day, and thereupon the agent of defendant at Austin being so apprised that a mistake had occurred in the transmission of said message, and that it had been sent to New York instead of New Orleans, at once tele

graphed to the New York agent of defendant to destroy said message.

That defendant never did transmit nor attempt to transmit said message to A. Thompson & Co., as it had obliged itself to do, and that in consequence of its gross negligence and carelessness, as aforesaid, said message was never delivered to nor received by said A. Thompson & Co.; that had defendant transmitted said message as it agreed to do, it would have reached said A. Thompson & Co. before they received the order given by petitioners to said Maillott, as aforesaid, but as the said A. Thompson & Co. did not receive said message from petitioners cancelling said order, they filled said order for ninety-five barrels of sugar on the fifteenth day of November, 1879, and shipped same to plaintiffs.

That petitioners were compelled, by the negligence of defendants, as aforesaid, to receive said sugar upon its arrival, and pay therefor the sum of $2,209, the price agreed upon by petitioners and A. Thompson & Co., whereby petitioners were damaged $271.88, being the difference between the price paid for said sugar and the price for which petitioners could have bought the same in the New Orleans market at said time had the defendant delivered said message cancelling said order, as it agreed and undertook to do.

That petitioners have been further damaged $100, being interest from November 15, 1879, to date of suit on said $2,209, paid for said sugar, which amount petitioners were compelled to pay by reason of the gross negligence of defendant, as aforesaid. Prayer for $371.88 and costs. WATTS, J.

In the transmission and delivery of messages, telegraph companies must, from the nature of the business in which they are engaged, and their relations to the general public, be held to a strict rule of diligence. They accept benefits and franchises granted by law, including the extraordinary right of eminent domain.

The consideration that induces the public to confer these rights and franchises is, that it may thereby be furnished with a safe and speedy means for the prompt transmission of information between places remote from each other.

And as these corporations are, on the one hand, created for the accommodation and convenience of the public, and on the other organ ized and put in operation for the mutual profit of the members, the law assigns them a kind of dual position. In their relations to and with the public, they are deemed a kind of public institution, and in respect to their internal affairs, that is among the members, they are deemed strictly private. The law recognizes this twofold character of these corporations and regulates and determines rights accordingly.

The almost instantaneous transmission of ideas to the greatest distance by means of a peculiar application of electricity to a wire whereby certain sounds are made to represent letters which are to be formed into messages, express

ing with precision the ideas intended to be conveyed, requires great skill and unceasing care.

Often the most important matters financial and otherwise are dependent upon the correct transmission, reading and rendering of these signals or sounds so that the exact idea intended shall be communicated to the party to whom the message is sent.

The duties assumed by these companies in this respect are truly delicate, difficult and important. As a consideration for assuming these duties, the public grants to them corporate existence with its attending rights and benefits.

Besides, as a condition precedent to the assumption of responsibility, they are authorized to demand and receive full compensation, to be fixed by themselves, for the service to be rendered. Such being the case they should, upon principle, be held to the greatest care in the selection of the instruments to be used and the agents to operate them, and a failure in this regard will render the company liable to any person injured by reason of such failure. It is a well known fact, however, in the science of telegraphy, that owing to electric currents and the presence of unusual quantities of electricity occasionally found along the line, that although a message may be forwarded or rather started with the most exact precision, it may be entirely interrupted, or the sounds or signals so changed that a different message is received from that which was sent.

Therefore, it would be unreasonable to require these corporations to insure against causes which no amount of foresight or caution, upon their part, could overcome. But as they possess peculiar facilities for establishing the existence of these interposing and disturbing causes, the burden is upon them to do so when they seek to excuse upon that account. It is now the general and accepted rule that where it is shown that the message was received by the company and not delivered, or delivered in a materially altered or changed condition, that a prima facie case of negligence is made against the company, and the burden is upon it to show that the failure was the result of these unavoidable causes.

In the consideration of the case before us, these general principles will be kept in view, as the law of the case, so far as applicable to the points made and urged by the parties.

It is claimed that the court erred in overruling the general demurrer to the petition, and in support of this objection it is assumed that no cause of action is stated therein.

The pith or gravamen of the action, as shown by the petition, is, that the appellees delivered to the operator at Austin the message and paid to him the compensation for its transmission and delivery to A. Thompson & Co., at New Orleans; that the message was not delivered according to the contract, and by reason thereof the appellees were compelled to pay $271.88 more for the sugar than they would have paid

had the message been delivered promptly, as was contemplated.

In the case of Griffin v. Colver, 16 N. Y. 480, Selden, J., treating of the measure of damages, said: The party injured is entitled to recover all his damages, including gains prevented, as well as losses sustained.

Chief Justice Earl, in the case of Leonard v. New York Telegraph Co., 41 New York, 544, considering the same subject, said: It is not required that the parties must have contémplated the actual damages which are to be allowed, but the damages must be such as the parties may fairly be supposed to have contemplated when they made the contract. Parties entering into contracts usually contemplate that they will be performed, and not that they will be violated. They very rarely actually contemplate any damages which would flow from any breach, and very frequently have not sufficient information to know what such damages would be, as both parties are usually equally bound to know and be informed of the facts pertaining to the execution or breach of a contract which they have entered into.

I think a more precise statement of this rule is, that a party is liable for all the direct damages which both parties to the contract would have contemplated as following from its breach if, at the time they entered into it, they had bestowed proper attention upon the subject, and had been fully informed of the facts. We are Chief Justice Earl is the law that should be apof the opinion that the rule thus stated by plied in cases where damages are claimed on account of a breach of contract.

In this case the breach of the contract is distinctly and clearly stated, and that as a consequence of that breach appellees were compelled to pay $271.88 that they would not have paid had appellant complied with the contract. And had the parties bestowed proper attention upon the subject, and had been fully informed of the facts as they are alleged in the petition, it is clear that, as a consequence of a breach of the contract, that the damages, as alleged, would have been in the contemplation of the parties.

The expenditure of money rendered necessary solely by a breach of contract, constitutes substantial damages for which an action may be had.

It is urged that the petition shows that the contract with respect to the purchase of the sugar had progressed so far between appellees and A. Thompson & Co., that it could not have been cancelled except upon the consent of the latter.

Assuming this to be true, still it must be remembered that it is, in effect, alleged that if the message had been delivered the sugar would not have been shipped to them.

We conclude that the court correctly overruled appellants general demurrer to the petition.

It is claimed that the court erred in admitting as evidence the bill of lading dated November

15, 1879, signed Fred Cook, over the objection of appellant. On the trial in the court below it was shown that appellees had, on the 12th day of November, 1879, accepted A. Thompson & Co.'s proposition and had given their order to Maillott, the agent of A. Thompson & Co., for the sugar, who testified that he immediately sent the order by telegraph. Appellants claimed that the message countermanding the order was delivered by them to the operator at Austin on the day after; that is, on the 13th day of November, 1879; there is no evidence outside the bill of lading found in the record that tends to show that the sugar was not shipped on the day before appellants delivered the message to the Austin operator. This was a material fact, and the burden was upon appellees to show that if the message had been promptly delivered to A. Thompson & Co., that it would have reached them before the sugar was shipped.

Stating the proposition in a different form, the burden was upon appellees to show an injury resulting from the non-delivery of the message to entitle them to recover in this action.

And it is certainly true that if the sugar was in transit before the message countermanding the order was delivered to the Austin operator, that no injury could have resulted in the particular matter asserted in the petition to appellants. Evidence to establish the fact was necesessary, and while the bill of lading might not furnish very conclusive evidence that the sugar was shipped after the time the message should have been delivered, it does tend to show that fact, and constitutes the only evidence in the record with respect to that matter. Therefore, if the same was improperly admitted, it would be a material error and such as would likely work an injury to the appellant.

The bill of lading and accompanying letter did not, in whole or in part, form the basis of any pleadings in the case. They were private writings to which appellant was an entire stranger. And it is elementary law that private writings which do not constitute, in whole or in part, the basis of the pleading, is not admissible in evi dence without first proving their execution. A bill of lading occupies, in this respect, the same position as any other private instrument, and if the same purports to be signed by a clerk or servant, the agency of such clerk or servant must also be proven. Abbotts' Trial Evidence, 564; Rena v. Sumers, 33 Tex. 760.

It is our conclusion that the admission of this evidence constitutes such error as ought to reverse the judgment. To entitle appellees to recover in this case, the burden is upon them to establish the three following propositions:

1. That the appellants undertook to transmit and deliver the message.

2. That it failed to transmit and deliver the same as agreed.

3. That appellees were damaged by reason of the failure. Abbott's Trial Evidence, 604.

Appellants claim that the judgment of the court is not sustained by the evidence.

The finding of the court upon the evidence is entitled to the same consideration as would be given to the verdict of a jury.

This rule has regard in its application to the credibility of witnesses and the weight to be given to their testimony.

But it has no application, however, to the question here presented, which is, that there is not sufficient evidence in the record giving to it full weight to sustain the judgment of the court. It is not a question of preponderance, but an absence of evidence.

The record indisputably establishes the first of the three propositions stated above.

Appellant insists that the evidence fails to establish the second proposition, that is, it fails to show that the message was not delivered.

To establish the default, appellees proved that on the morning of the 13th day of November, 1879, they delivered to the operator at Austin the message in question and paid the charges for its transmission and delivery; that the same was immediately sent, properly addressed to A. Thompson & Co., New Orleans; that the message was sent to Galveston and repeated from that place; that soon afterwards, the same day, an office dispatch was received at Austin by the operator from the Galveston repeating office purporting to be from New York, to the effect that New York could not find Austin's A. Thompson & Co. The operator replied through the Galveston repeating office that it was a mistake and The to destroy the message.

Austin operator made no further effort to send the message, and did not notify appellees, although well acquainted with them, of the receipt of the office message from New York.

This is all the evidence in the record tending to show that the message was not, in fact, delivered to A. Thompson & Co. The evidence of neither of the members of that firm is found in the record.

The operator testifies that when he received the New York message, that he replied that it was a mistake, that the message was intended for New Orleans, and to destroy the same.

The reasonable conclusion to be drawn from the evidence is, that all of the messages passed through the repeating office at Galveston, and that the mistake in sending that in question to New York instead of New Orleans, most probably occurred in the Galveston repeating office, and as the attention of that office must have been called to the mistake by the New York enquiry, it is most reasonable to suppose that the same would there be corrected.

We are not prepared to say but that, in the absence of proof, the presumption ought to be indulged that the repeating office corrected the mistake rather than presume negligence.

Appellant also claims that the evidence fails to show an injury by reason of the supposed default in delivering the message. In this, the evidence shows such a contract between appellees

and A. Thompson & Co., that it would not be subject to cancellation without the concurrence and consent of A. Thompson & Co.

As to this question the record shows that appellees had made a proposition to A. Thompson & Co. to purchase the sugar. This was made through Maillott, the agent of A. Thompson & Co. The proposition as made was declined and a different proposition, with respect to the purchase of the sugar, was submitted to appellees, which they accepted and the sugar was ordered accordingly by Maillott.

The evidence is conflicting as to the understanding between Maillott and appellees with reference to the latter's right to countermand any orders given for goods before the same were filled or the goods shipped.

And while the evidence shows a contract of purchase binding in law, we would not be authorized in holding that the court found without evidence upon this point. Moeller testifies that his firm had an understanding with Maillott that any order taken by the latter was subject to countermand by either party before filling or before the goods were shipped.

We award that the judgment be reversed and the cause remanded.

Award of Commissioners examined, opinion adopted, and the judgment reversed and cause remanded.

SUPREME COURT OF CALIFORNIA.

PEOPLE, RESPONDENT,

v.

J. R. FEILEN, APPELLANT.

August 22, 1881.

Bigamy-Proof of Former Marriage and Life of First Wife Necessary. In a trial on an indictment or information for bigamy, to make out a case on the part of the prosecution, the first and second marriage must be proved, and it must also be proved that the former husband or wife was alive when the second marriage was entered into.

Instruction as to Presumption of Continuance of Life from Proof of Prior Existence. It is error to instruct the jury upon the trial of a charge of bigamy that in determining whether the wife of the former marriage was living when the second marriage took place, they may act upon the rule of law that when a fact is once shown to have existed, the law presumes its continuance ; and since it had been shown that the former wife was alive two or three or four years prior to the second marriage, the law presumes that she continues to live, upon which presumption of law they are authorized to act in determining whether the former wife was living at the date of the second marriage.

Presumption of Life of First Wife. In a bigamy case there is no presumption against a defendant, from the fact of proof of existence of former wife that such existence continued at the date of second marriage. The issue on such point must be left to the jury to be determined as a matter of fact, upon such reasonable inferences as the evidence supplies, free from any presumption of law.

Family. The word "family" does not necessarily include wife. Such word is frequently applied to children

alone.

Arrest of Judgment—Demurrer. By failing to demur specially, a defendant is precluded from moving in arrest of judgment on grounds which are the subject of special demurrer.

Evidence of Existence of Life of Former Wife at Date

of Second Marriage. Case stated in which the testimony failed to show that the first wife was living at date of second marriage.

Appeal from Superior Court, Santa Clara County.

THORNTON, J.

The defendant was convicted of bigamy, moved for a new trial which was denied, and judgment was rendered and entered upon the conviction. This appeal is prosecuted from the order denying a new trial, and from the judgment.

On the trial, testimony of a witness was offered and admitted that defendant had stated to him in 1875 or in 1876 that he had left a wife with four or five children in Chicago; that she was sick and couldn't stand a voyage to California. Another witness testified that a person stated to him in 1875, in a conversation had in the presence of defendant, that he (defendant) had a wife and five children in Chicago, and that his wife was sick; that the defendant said nothing in relation to this statement made in his presence. that defendant told him several times that he had a family in Chicago; that "the last time defendant referred to his family in Chicago wascan't say exactly-about two or three years ago. Said his wife was sickly." A third witness testified that he saw defendant in his office in 1875. This witness proceeded to state: "He (referring to defendant's statements) said times were poor in Chicago; he had a wife and four or five children. He spoke of his family after that -showed me likenesses of children. He spoke of his family the last time about 1878. I couldn't place the date very well." This witness also stated that he introduced defendant to one Habisch; that "defendant explained to Habisch that he had a wife and family in Chicago, and wanted to raise money and bring them to California. This was in 1875." The officer who arrested the defendant was called and testified that defendant told him after the arrest that he had a wife and four children, but had not heard of them for four or five years; that he was not certain, but think he said in Chicago. Of this last statement as to the place he was not positive; that there was no threat or inducement offered him to make this statement. The above is all the testimony bearing on the issue as to the wife of the alleged first marriage being alive when the second marriage occurred.

As to the second marriage it was admitted at the trial that it took place in San Jose in this State, in the month of July, 1880, with Dora Max, the person named in the information, and that defendant and Dora Max had lived together as husband and wife since the date just above given, in San Jose.

In a trial on an indictment or information for bigamy, to make out a case on the part of the prosecution, the first and second marriages must be proved; and it must also be proved that the former husband or wife was alive when the second marriage was entered into. In this case it was necessary to prove that the former wife was