Page:The Green Bag (1889–1914), Volume 18.pdf/71

 THE GREEN BAG PRACTICE. (Waiver by Counsel in Argument.) Web. — A peculiar trial point which we do not remember to have seen raised before, is disposed of in Langdon v. Clarke, 103 Northwestern Re porter, 62, on a principle analogous to that of estoppel. The action was for assault and battery, and plaintiff's attorney stated in argument, that the return of a verdict for nominal damages, as requested by defendant's counsel, would brand every person on the jury as dishonest, and that if they did not find the plaintiff entitled to sub stantial damages, he wished them to return a verdict for defendant. The assault was undis puted, and there was practically no question as to the existence of a cause of action for at least nominal damages. A statute in Nebraska pro vides that a new trial shall not be granted on account of the smallness of damages in an action for an injury to the person. Under this statute and the circumstances mentioned, the court holds that the returning of a verdict for defendant, although unsupported by the evidence, was not error, where a verdict for nominal damages would have been supported by the evidence, plaintiff being bound by the utterances of his own counsel, inviting the jury to return such verdict under such circumstances. In some states the court will dismiss where the opening statement of counsel discloses facts pre venting a recovery. This practice has never, the writer believes, been recognized in Nebraska. The case in hand, it is true, is one of inviting an adverse verdict rather than admitting the case away, but the analogy is strong. The evident pro priety of this decision therefore suggests the sound ness of the practice of dismissing on the opening statement. Frank Irvine. PROPERTY. (Franchise — Exemption from Taxation.) Va.—That an exemption from taxation embodied in the charter of a corporation is not property or a property right passing to its succes sor in interest on a foreclosure sale, is maintained in Lake Drummond Canal & Water Company v. Commonwealth, 49 Southeastern Reporter, 506. The Dismal Swamp Canal Company of Virginia was organized under a charter containing a per petual exemption from taxation of all property rights and franchises of the company, its succes sors and assigns. The Virginia Statutes (Code 1887, §§ 1233, 1234) provided that a sale under a mortgage or trust deed executed by a corporation on all its works and property, should pass to the purchaser all the property of the corporation other than debts due to it, and that on such con veyance, the said company should be ipso facto

dissolved, and that the corporation created in consequence of such sale and conveyance should succeed to all such franchise rights and privileges, and perform all such duties as would have been had, or should have been performed by the first company but for such sale and conveyance. The property of the Dismal Swamp Company was sold under mortgage foreclosure and it is held that, in spite of the charter and statutory provisions, the exemption from taxation did not pass to the purchaser at the sale. PROPERTY. (Water Courses.) W. Va. — A very clear illustration of the distinction between surface waters and waters belonging to a natural water course is contained in Uhl v. Ohio River Railroad Company, 49 Southeastern Reporter, 378. It is there declared that overflow waters of a natural stream in times of ordinary flood or freshet flowing over, or standing upon adjacent low lands, do not cease to be part of the stream, unless and until separated therefrom so as to prevent their return to its channel. The practical effect of the decision is, of course, that such over flow waters, if regarded as part of the stream, cannot be diverted or their natural course other wise impeded as may be done with surface waters. The specific facts to which the principle thus laid down is applied are briefly these: A railroad company constructed an embankment between a river and adjacent low lands, inserting in the embankment a culvert for the drainage of the lands and to permit the escape of overflow. This culvert, however, was not of sufficient size topermit water behind the embankment to rise and fall as fast as the stream did, with the result that at a time of flood the waters overflowed the em bankment in great quantity, and with considerable force, and injured the premises and the person owning land on the other side of the embankment. This, the court holds, was an invasion of that person's rights and an unwarranted diversion of a water course. SALES. (Liability of Assignee of Bill of Lad ing.) Ala. — No direct precedent seems to exist for the holding contained in J. C. Haas & Co. v. Citizens Bank of Dyersburg, 39 Southern Reporter. 129, although it was the outgrowth of a trans action not at all unusual in the ordinary course of business. Plaintiffs purchased a certain number of sacksof corn meal which the seller consigned to them, having the bill of lading made out to himself. He then assigned the bill, accompanied by a draft on the buyer, to a bank, to which the draft was made payable and which paid the seller for the goods. The draft was sent for collection to