Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1888-12-21

fore you, and under the instructions
| herein given you, you can fix the lines OF
the survey in harmony with its calls, and
the known corners the fact Gf you find 1t
to be a fact) that said lines would include
more than eleven leagues, becomes
wholly immaterial, and you will, i'll such
case, not consider the extent of the
area further than as a circumstance
to aid you Gin connection with all
the evidence i'll the case9 in following
the footsteps of the original surveyor,
and fixing the true boundariesyOf said
I grant - Held: Error. We think the
jury should not be instructed to fix the
unmarked and underlined boundaries, re-
| gardless of the fact of excess. The fact
of excess in area should have been left to
the jury to be considered i'll connection
with all other evidence, without sugges-
tions from the court as to what weight ii
was entitled to, i'll determining so much
of the boundaries as were not identified
! by marks and objects upon the ground.
.. The court also gave the following
charge which is assigned as error; of
the testimony does not satisfy you that
the two hackberries called for III the
! grant, are identified rs the northeast
corner of the survey, and if you cannot
| from the testimony fix said northeast cor
ner, nor the back line of said Moreno
| survey by any other marks or monu-
| ments, then if you find the beginning
| corner is established and identified, then
| you will fix the said northeast corner by
| the courses and distances of the first and
several lines celled for in the Moreno sur
vey; except that the second line should
he extended so as to meet
the east line, if YOU find 1t
was marked and extended beyond
the hackberries, and the second line thus
run will be the true north line of SAID
Moreno survey Held: Error. There
seems to be no doubt as to the localities
of the two corners on the river; the
southwest and southeast both appear to
have been well identified upon the
ground This being so, one was entitled
to as much weight rs the other i'll deter
mining the locality of the north or back
line, unless the jury should believe from
the evidence that the lines from one of
these corners were actually run and
measured, and not from the
other If the jury could not de-
| termine from the evidence the To-
cality of either the northwest or north
east corner, and they could not from the
| testimony fix the north or back line
! by any other marks or monuments, then
| they should have been permitted by :he
charge to locate the north or back line
from either or both of the identified cor
ners of the river, under the guidance OF
all the evidence and connecting circum-
stances including the question OF area.
3. The court also gave the following
charge, which is assigned as error: The
! burden of fixing this north line IS on the
defendants, and unless they have so
IL. L. 1 n
clude or cover the plaintiff land
with reasonable certainty, ana by pre-
ponderance of the credible testimony you
must find for the plaintiff - Held: En-
ror. We would have reversed the judg-
ment because of this charge had it been
in favor of appellant. The words
reasonable certainty mean suDstan-
| tally the same as beyond reasonable
! doubt - We do not understand the law
to require that Il jury in civil case must
! believe beyond Il reasonable doubt to an
thorize their verdict, but we understand
| the rule to be that the verdict should be
| in accordance with the preponderance of
the evidence Reversed and remanded.
| Acller, p. j.
Houston and Texas Central Railway
VS. NJ. Tierney; appeal from Dallas.
! Suit by appellee for personal injuries.
! Appellee was Il ''SectiOn boss i'll en-
| ploy of appellant company. The evil
/ dence shows that he was ordered out on a
train loaded with old iron, to unload
same While the train was going out he
was ordered by the conductor i'll charge
of the construction train to climb over
box car by means of a brake rod at
! tached thereto IN attempting to obey
! this order the brake rod, by reason of its
defective attachment to the car, and be
! cause the car also was rotten, gave way
and precipitated appellee to the ground,
where he fell upon some old iron which
Law alongside the track and was seriously
/. injured The above was the testimony
for appellee, but was cOntradlcted by
several witnesses. Appellant pleaded
general denial and a written release by
appellee. l. The court charged as fol-
lows: ''With reference to the release
pleaded by defendant you are instructed
that if the plaintiff signed it when he was
so drunk that he did not know what he
was doing, then the release is not bind
ing upon him. If plaintiff signed
it without having an opportunity
to understand its terms, then it would
not be binding upon him and would not
defeat his claims for damages. - Held:
This charge does not conform TO the tes-
llLuOHN. 1t SllDulilS an lSSitC lipb iitl'hC
by the testimony. Appellee i'll his own
testimony does not claim that he signed
it without having an opportunity to I'M
derstand its terms, nor does he. deny
signing it, but only claims that he was
drunk. In view of the full proof of the
execution of the release by plaintiff, and
the absence of any evidence from appel
lee impeaching it, we DO not think there
was any basis fer the instruction. Re
versed and remanded.- Hobby, j.
u. B. Zimpleman vs.. r. NJ. Heating,
ct al D.; appeal from FL PaSo. Trespass
to try title l. Where an agent makes Il
deed to land of his principal without
authority to do so, the ratification must
generally be by deed of the principal. y
mere assent, or such acquiescencc as will
only amount to evidence of assent will
not be ratification. The asquiescence
by parol, to bind the prin-
cipal, must be by such acts
3s1swilI operate an estoppel in pals. The
stsSurt should have instructed the jury to
end for appellant, there being no such
Qualification by him of the sale of the land
as required by the rules laid down above.
The Judgment is reversed and here rem
dered for appellant. Reversed and rem
dseaf. ColIard, J. -