ute begins to run as soon as the process is served or the arrest is made.1 In the case first cited in the preceding note,2 PARKE, B., referring to the above cases as to consequential damage, said, "It remains to consider some cases cited and much relied on, showing that the limitation of actions under particular statutes directed to be brought within a certain time from the fact committed,' dated from the period when consequential damage was occasioned, and therefore it was said that the damage was the cause of action. These statutes mean no doubt the limitation to run from the act, that is the cause of action. But on examining these cases they do not appear to be for injuries to rights, which this is, but solely for consequential damages, where the original act itself was no wrong and only became so by reason of those damages." An important distinction exists between actions arising from torts and upon assumpsit, in that the right to the former cannot be revived by acknowledgment. 8 SEC. 179. Negligence. In actions for injuries resulting from the negligence or unskilfulness of another, the statute attaches and begins to run from the time when the injury was first inflicted, and not from the time when the full extent of the damages sustained has been ascertained.* The gist of the action is the negligence or breach of duty, and not the consequent injury resulting therefrom. legal. Held, that the imprisonment under the first warrant was terminated by the order, and that the statute of limitations began to run from that period. 1 Pratt v. Page, 18 Wis. 337. 2 Nicklin v. Williams, ante. 3 Galligher v. Hollingsworth, 3 H. & M. (Md.) 122; Goodwyn v. Goodwyn, 16 Ga. 114. 4 Crawford v. Goulden, 33 Ga. 173; Wilcox v. Plummer, 4 Pet. (U. S.) 172; The Governor v. Gordon, 15 Ala. 72; Bank of Utica v. Childs, 6 Cow. (N. Y.) 238; Niagara Bank v. Plumb, 9 Wend. (N. Y.) 287; Murdis v. Shackleford, 4 Ala. 495; Brown v. Howard, 2 B. & B. 73; Thurston v. Blackinton, 36 Ind. 501. In Bank of Utica v. Childs, 6 Cow. (N. Y.) 238, a notary neglected to charge a prior indorser by giving the requisite notice of non-payment, &c., and the bank was compelled to pay damages. The action in favor of the bank not having been commenced until more than six years after the negligent act was done, was held barred by the statute, because its right of action against the But where a person or corpo notary accrued immediately on the omis sion, and was not dependent upon the payment of damages by it. In the case of Wilcox v. Plummer, ante, a note was placed in the hands of an attorney for collection, and he neglected to join an indorser in the action. Subsequently he sued the indorser, but, because of a mistake in the process, it finally failed, and the statute having then run as against the indorser, and by reason thereof his liability upon the note ceased, the question was, whether the cause of action arose against the attorney when the mistake was made, or from the time when the damage was finally developed. The court held that it arose and became complete when the mistake was made, and as, dating from that period, the statute had run in his favor, he had judgment in his favor in the action. 5 Thurston v. Blackinton, ante; Gustin v. Jefferson, 15 Iowa, 158; Northrup v. Hill, 61 Barb. (N. Y.) 136; Lathrop v. Snellbaker, 6 Ohio, N. s. 276; Argall v. Kelso, 1 Sandf. (N. Y.) 98; Ellis v. Kelso, ration is primarily liable for the negligence or misfeasance or malfeasance of another, the statute does not begin to run upon the remedy of such person or corporation against the person guilty of such negligence or breach of duty until the liability of such person or corporation has been finally fixed and ascertained;1 because, in the latter case, the gist of the action is the damage, while in the former it is the negligence or breach of duty. In actions for negligence, the jury are not restricted to damages accrued up to the time of action brought, but may include all which have accrued up to the time when the verdict is rendered, as well as such as are likely to result in the future. There seems generally to be no distinction as to the time when the statute applies between actions for misfeasance or malfeasance and any ordinary action on the case." But in actions of this class a question may arise as to the exact time when the default arose, and, as a right of action does not exist until default, this question is material. Questions of this character most frequently arise in actions against public officers, and the rules relating thereto, so far as any have been settled, have already been given ante, in the section relative to sheriffs. SEC. 180. Nuisances. The rule in reference to acts amounting to a nuisance is, that every continuance is a new nuisance for which a fresh action will lie, so that, although an action for the damage from the original nuisance may be barred, damages are recoverable for the six years preceding the bringing of the action, provided such a period of time has not elapsed that the person maintaining it has acquired a presumptive right to do so. Thus, in the case first cited in the last note, in an action brought to recover damages for injuries sustained by reason of the erection of a dam, which set back the water of a stream and overflowed the plaintiff's land, it was held that while the plaintiff was barred from recovering damages arising from the erection of the dam, he might recover for its continuance. The same rule was adopted in an English case, where the defendants as trustees of a turnpike-road, who had erected buttresses to support it, on the plaintiff's land, were held liable for its continuance there, although they had already been sued, and responded in damages for its erection. But while this is the 5 18 B. Mon. (Ky.) 296; Sinclair v. Bank, 2 Strobh. (S. C.) 344; Cook v. Rives, 13 S. & M. (Miss.) 328; Battley v. Faulkner, 3 B. & Ald. 288; Howell v. Young, 5 B. & C. 259. 1 Veazie v. Penobscot R. R. Co., 49 Me. 126. 2 Wilcox v. Plummer, ante. Holmes v. Wilson, 10 Ad. & El. 503; Bowyer v. Cook, 4 De G. & S. 236; McConnell v. Kibbe, 29 Ill. 483. 5 Holmes v. Wilson, 10 Ad. & El. 503. 6 McConnell v. Kibbe, 29 Ill. 483. In Bowyer v. Clark, 4 De G. & S. 236, the defendant placed stumps and stakes in a 8 Baker v. Atlas Bank, 9 Met. (Mass.) ditch on the plaintiff's land, and the plain182; Hinsdale v. Larned, 16 Mass. 68; tiff, having recovered against him for Mather v. Green, 17 Mass. 66; Fisher v. placing the stumps and stakes there, Pond, 1 Hill (N.Y.), 672. brought a second action for continuing Staples v. Spring, 10 Mass. 72; them there, and it was held that he could 1 rule as to nuisances of a transient rather than of a permanent character, yet, when the original nuisance is of a permanent character so that the damage inflicted thereby is of a permanent character, and goes to the entire destruction of the estate affected thereby, a recovery not only may but must be had for the entire damage in one action, as the damage is deemed to be original; and as the entire damage accrues from the time the nuisance is created, and only one recovery can be had, the statute of limitations begins to run from the time of its erection against the owner of the estate or estates affected thereby. Thus, in the case last cited, the plaintiff was the owner of certain lots in Council Bluffs. In 1859, the lots were crossed by a meandering stream called Indian Creek. In order to remove the stream from one of the streets of the city, the city determined to and did cut a ditch along the side of the street and across the end of the plaintiff's lots. The stream was turned into the ditch. This was done in 1859 and 1860. The ditch was extended to a county ditch, but was not cut as deep as the county ditch, into three feet; in consequence of which, owing to the nature of the soil, a cavity was created at the point where the city ditch fell into the county ditch, which cut back up the stream. It reached the plaintiff's lots in 1866, when he began to sustain damages from the action of the water. Prior to the commencement of the action against the city for damages, the ditch had become fifty feet wide and twelve feet deep; and to arrest the action of the water and confine it within its proper channel the plaintiff built a wall, which accomplished the desired result. The statute of limitations being pleaded, the court below directed the jury to find a verdict for the defendant, which was sustained upon appeal. Without desiring or in any measure intending to question the 8 recover, as the continuance of the original nuisance amounted to a new nuisance each day it was continued. 1 Troy v. Cheshire R. R. Co., 23 N. H. 101; Anonymous, 4 Dall. (U. S.) 147; Powers v. Council Bluffs, 45 Iowa, 652. See also Kansas R. R. Co. v. Mihlman, 17 Kan. 224. 2 Powers v. Council Bluffs, ante; Wood on Nuisances, 889. 8 ADAMS, J., in delivering the opinion of the court, said: "No suit could have been maintained until some actual injury was caused to the plaintiff by the action of the water, resulting from the improper construction of the ditch. But in 1866, if not earlier, the plaintiff's premises began to be injured, and he then of course had a right of action. The only question in this case is as to the character of the damage. Was it, as it occurred from day to day, new damage? If so, the plaintiff was entitled under the evidence to recover some damage, Although his right of action as to a part of the damages which he had sustained might be barred, we have to distinguish them as between what must be regarded as original damages and what may be regarded as new damages. In 3 Bl. Com. 220, it is said that every continuance of a nuisance is held to be a fresh one, and that, therefore, a fresh action will lie. In Stapls v. Spring, 10 Mass. 72, action was brought to recover for damages which, it was alleged, the plaintiff had sustained by reason of his land being overflowed by defendants' milldam. It was held that, while plaintiff was barred from recovering for damage caused by the erection of the dam, he might recover for damage caused by its continuance general doctrine announced by the court, that, when the damage is complete by the original act creating the nuisance, the statute begins to run In McConnell v. Kibbe, 29 Ill. 483, the same doctrine is recognized. The defendant owned the lower story of a building, the plaintiff the upper stories. The defendant removed in his story a partition brick wall, whereby the plaintiff's part of the building was injured. WALKER, J., said: The continuance of that which was originally a nuisance is regarded as a new nuisance.' As, however, the suit was brought for the creation of the nuisance and not its continuance, it was held that plaintiff could not recover, the cause of action for the creation of the nuisance having become barred. In Bowyer v. Cook, 4 M. G. & S. 236, the plaintiff, having previously recovered against the defendant for placing stumps and stakes on his land in a ditch, brought suit for continuing them in the ditch. It was held that he could recover. In Holmes v. Wilson, 10 Ad. & El. 503, the defendants, as trustees of a turnpike road, had built buttresses to support it on the plaintiff's land. Although the plaintiff had already recovered for the creation of the nuisance, it was held that he might recover for its continuance. The dividing line between the cases above cited and those in which the damages are considered as having all accrued at once as a part of the original injury is not always clearly distinguishable. In the Town of Troy v. Cheshire R. R. Co., 1 N. H. 23, 83, the defendant had built its road partly over the highway. While it was held that plaintiff could recover only for the damages which had been sustained at the time of the commencement of the suit, yet it was considered that all the damages which plaintiff had sustained, or could sustain, accrued when the defendant's road was built, and that only one recovery could be had. This case is similar to the one last above cited, but distinguishable from it. The difference, however, consists in the fact that the railroad bed was deemed a permanent structure, in such sense that it was not to be presumed that the company would remove it. The turnpike buttresses were not of such character. So, too, in the case where the defendant had placed stumps and stakes in the plaintiff's ditch, the obstruction was not permanent. In the Town of Troy v. Cheshire Railroad Co., above cited, BELL, J., said: 'Wherever the nuisance is of such character that its continuance is necessarily an injury, and where it is of a permanent character that will continue without change from any cause but human labor, there the damage is an original damage and may be at once fully compensated.' "The principle thus stated is sufficient to enable us to tread our way through any apparent difficulties which surrounded our path. In the light of it we can see that in a case of overflow from a mill dam the injured party should be allowed to maintain successive suits. Somewhat depends on the way the dam is used. The injury, therefore, is not uniform. But, what is of controlling importance, the dam if not maintained will go down, as surely as the sun will go down, and the nuisance of itself will come to an end. Its duration will be determined by freshets and other forces which are contingent and therefore incalculable. It may, indeed, be so built that it should be regarded as permanent. In such case it is said that the damage should be considered and treated as original. The Town of Troy v. Cheshire Railroad Co., above cited. "While no infallible test can be applied to enable us to determine whether a structure is permanent or not, inasmuch as nothing is absolutely permanent, yet, when a struc ture is practically determined to be a permanent one, its permanency, if it is a nuisance and will necessarily result in damages, will make the damages original. "If we apply the principle above stated to the case at bar, we must hold that the damages were original. The plaintiff's ground of complaint is that the ditch was improperly constructed. As constructed it resulted in the excavation of the plaintiff's lots. The damage consisted, not in excavating the lots, but in doing an act which resulted in their excavation. "The result too was a necessary one, the ditch remaining as constructed. The cause of the difficulty was a permanent one in that it would not grow less unless remedied by human labor. The case, therefore, is strictly within the rule applied in the from that time; yet, in the particular case under the facts stated, we cannot assent to the ruling of the court, that the plaintiff's remedy was full and complete where damage first intervened from the defendant's acts. According to the statement of the court, the damages resulted from day to day by the widening of the ditch, until, from a ditch of a few feet in width, it extended to a width of fifty feet, and might, except for the act of the plaintiff by the erection of the wall, have extended indefinitely. To say that the plaintiff was bound to know from the first injury to the estate that this result, in the very nature of things, would ensue, is neither logical nor natural; and, without stopping to elaborate upon the matter, we must say that it is not within the reason of the case upon which the court relied.1 In that case the damage was complete when Town of Troy v. Cheshire Railroad Co., above cited. Nor does the rule afford any difficulty in the assessment of damages, which is another test for determining the question under consideration, or rather the consideration of the difficulty of assessing damages is another way of applying substantially the same test. If the cause of the injury is permanent, the damages can be foreseen and estimated. If the cause of the injury is not permanent, if it depends upon human volition (as the maintenance of a mill-dam), the damages cannot be foreseen and estimated. Where the buttresses were placed on the plaintiff's land, in Holmes v. Wilson et al., above cited, the damages could not be foreseen and estimated. The defendants were trespassers, and, the structure not being necessarily permanent, it was not to be presumed that the defendants would continue the trespass. The presumption was that it would be discontinued. But, there being no presumption as to the time when it would be discontinued, the damages could not be foreseen and estimated. "The same principle lies at the foundation of the dictum in McConnell v. Kibbe, above cited, where the defendant owned the lower story and the plaintiff the upper stories of a house, and the defendant removed a partition brick-wall which was necessary for support. It could not be presumed that the defendant would allow the superincumbent stories to fall. It was to be presumed, therefore, that he would arrest the difficulty. With such a presumption the damages could not be foreseen and estimated. "When the fall in the stream in question had moved back from the county ditch to the plaintiff's lots and the creek ditch began to deepen and widen along those lots, as it had been doing for six years on the land below, no especial foresight, we apprehend, was needed to predict the result. At all events, it must be assumed that that may be foreseen which results from the ordinary and constant forces of nature. "The paintiff's damage was susceptible of immediate estimation. No lapse of time was necessary to develop it. It was the difference between the value of his lots as they would have been if the ditch had been properly constructed, and the value of them as they were with the ditch as it was. Το reach this value, regard might be had to the reasonable cost of the remedy for the trouble, if the cost would not be greater than the probable damage which would ensue if no remedy were applied. The remedy, whether a wall or something else, it was the plaintiff's privilege to apply." 1 Troy v. Cheshire R. R. Co., ante. A. is the owner of a house, and B. is the owner of a mine under it, and, in working the mine, leaves insufficient support to the house. The house is not damaged until some time after the workings have ceased. Held, that A. could bring an action at any time within six years after the mischief happened, and was not bound to bring it within six years after the work was done which originally led to the mischief. Backhouse v. Bonomi, 1 El. P. & S. 970. The defendants were the trustees of a |