crops are overflowed by reason of a railway embankment, if the nature of the embankment was such that the injury complained of was uncertain and contingent, such as might never happen, the damage was not original, in the sense that it necessarily resulted from the erection of the embankment, and consequently the statute of limitations did not begin to run until the crops were destroyed.195 So, in ordinary actions for negligence, the cause of action and the running of the statute date from damage, not from the conduct.196

Slander affords a peculiarly marked illustration of the principle under discussion. In five cases (of which four are slander proper, and one is libel) the law presumes damage to follow from the act of speaking or writing the words, and the cause of action arises immediately when the words are uttered. In all other cases the law does not presume that damage must have followed from speaking the words, and therefore the cause of action does not arise until damage has in fact followed. In both cases, the cause of action is none the less the resulting damage, and consequently the time of limitation runs in both cases from precisely the same point, namely, the happening of the damage.197 Slander of a person's business is not the conventional wrong of slander, so far as the statute of limitations is concerned. 198

195 St. Louis, I. M. & S. Ry. Co. v. Biggs, 52 Ark. 240, 12 S. W. 331 (followed in St. Louis, I. M. & S. Ry. Co. v. Yarborough, 56 Ark. 612, 20 S. W. 515); Bonner v. Wirth, 5 Tex. Civ. App. 560, 24 S. W. 306; Bunten v. Chicago, R. I. & P. R. Co., 50 Mo. App. 414; Baker v. Leka, 48 Ill. App. 353; King v. U. S., 59 Fed. 9. See, also, Ohio & M. R. Co. v. Neutzel, 143 Ill. 46, 32 N. E. 529. But overflowing of lands is sometimes regarded as a trespass. It is, accordingly, regarded that the statute commences to run at the first overflowing. Hunt v. Iowa Cent. R. Co., 86 Iowa, 15, 52 N. W. 668; Clark v. Dyer, 81 Tex. 339, 16 S. W. 1061. Cf. Hempstead v. Cargill, 46 Minn. 141, 48 N. W. 558.

196 Board of Com'rs of Wabash Co. v. Pearson, 120 Ind. 426, 22 N. E. 134. And in an action against a railroad company for personal injuries caused by its negligence, an amendment alleging that the acts of defendant were will fully done does not materially alter the cause of action, so as to make a plea of limitations available. Esrey v. Southern Pac. Co., 103 Cal. 541, 37 Pac. 500. But a cause of action against attorney for negligence arises at time of negligence, though damage arises later. Wilcox v. Plummer's Ex'rs, 4 Pet. 172. 197 Saunders v. Edwards, 1 Sid. 95.

198 Van Horn v. Van Horn, 53 N. J. Law, 514, 21 Atl. 1069; Mitchell v. Darley Main Colliery Co., 14 Q. B. Div. 125-137; Pig. Torts, 31.

In cases of actual fraud, the usual rule is that the statute of limitations against judicial action commences to run at the time of the discovery of the wrong, or at the time when the injured party was, by circumstances, sufficiently put upon such inquiry that he could and should have discovered the wrong, but not from the time of the wrong, or of the harm suffered.1 But the statute begins to run against an action to recover money obtained by a constructive fraud from the date of act committed.200

199

SAME-COMPLIANCE WITH STATUTORY REQUIREMENTS. 114. Compliance with statutory requirements may constitute a full discharge of a tort.

As has been considered, no action lies for damages incident to authorized act. On the same principle, if an alleged wrongdoer has complied with specific requirements of law as to the conduct resulting in damage complained of, no action lies. The cases in which such matters arise are almost always in connection with specific wrongs; so that they must be dismissed here with mere reference. An illustration of a limitation before damage is to be found in the multitude of enactments that an innkeeper is not liable for the loss of his guests' valuables, not delivered to him, if he has provided a safe and suitable place in the office for their keeping, and has posted notice so advising the guests.201 An illustration of discharge after damage occurs is the common legislative provision that a newspaper which has published a libel may rid

199 St. Paul, S. & T. F. R. Co. v. Sage, 4 U. S. App. 160, 1 C. C. A. 256, 49 Fed. 315 (reversing 44 Fed. 817, and 32 Fed. 821); Lincoln v. Judd, 49 N. J. Eq. 387, 24 Atl. 318; Hickham v. Hickham, 46 Mo. App. 496; Myers v. Center, 47 Kan. 324, 27 Pac. 978; Jacobs v. Frederick, 81 Wis. 251, 51 N. W. 320; Horbach v. Marsh, 37 Neb. 22, 55 N. W. 286; Northrop v. Hill, 57 N. Y. 351; Knox v. Yow, 91 Ga. 367, 17 S. E. 654; Harrell v. Kea, 37 S. C. 369, 16 S. E. 42; Walker v. Pogue, 2 Colo. App. 149, 29 Pac. 1017; Chicago, T. & M. C. R. Co. v. Titterington, 84 Tex. 218, 19 S. W. 472; Clausen v. Meister, 93 C 1. 555, 29 Pac. 232; Morgan v. Tener, 83 Pa. St. 305; Bates v. Preble, 151 U. S. 149, 14 Sup. Ct. 277.

200 Davis v. Hawkins, 1,63 Pa. St. 228, 29 Atl. 746.
201 Post, p. 901, "Negligence"; "Contract Duty," note 400.

itself of at least a portion of its responsibility by publishing a retraction.202

DISCHARGE OF JOINT TORTS JUDGMENT.

115. THE ENGLISH RULE is that a judgment recovered in an action brought against one of several joint tort feasors is a bar to an action against the others, although the judgment is not satisfied.

116. THE AMERICAN RULE is that the injured party who has elected to sue joint tort feasors separately may prosecute the same until the amount of damages is ascertained by verdict and entered in judgment; that a judgment against one joint tort feasor is no bar to a suit against another for the same wrong; but that the injured party can have only one satisfaction. Such party, however, may take his election de melioribus damnis, which, when made, is conclusive as to all subsequent proceedings. While the satisfaction of one judgment is the satisfaction of the cause of action, the plaintiff may collect costs in other judgments.

The English Rule.

The English rule, as stated in the black-letter text, was laid down in Brown v. Wooton.203 It is said that the earlier English doctrine was the other way.204 The rule as stated, however, is undoubtedly in force at the present time. The reason for this rule is that the damages are reduced to a certainty, that the cause of action is changed into a matter of record, which is of a higher nature, and the inferior is merged in the higher. Although there are several defendants, there is only one cause of action. "The judg ment of a court of record changes the nature of that cause of ac

202 Post, p. 520, "Libel & Slander"; "Statutory Defenses."

203 Cro. Jac. 73; Term 3, Jac. I.

204 2 Kent, Comm. 388.

tion, and prevents its being the subject of another suit; and the cause of action, being single, cannot afterwards be divided." 205 The American Rule.

In 1806, Chief Justice Kent 206 overruled Brown v. Wooton. The courts of Virginia, without much consideration, have held to the English doctrine.2 207 Rhode Island also holds to the same rule.208 The general American doctrine, however, is as stated in the blackletter text.20 209 The supreme court of the United States has accepted it fully. In Lovejoy v. Murray,210 Mr. Justice Miller reviews the

205 King v. Hoare, 13 Mees. & W. 594; Brinsmead v. Harrison, L. R. 7 C. P. 547; Buckland v. Johnson, 15 C. B. 145. Clifford, J., in Sessions v. Johnson, 95 U. S. 347-351, citing Heydon's Case, 11 Coke, 50; White v. Philbrick, 5 Greenl. (Me.) 147; Nickerbocker v. Colver, 8 Cow. (N. Y.) 111; O'Shea v. Kirker, 4 Bosw. 120; Lovejoy v. Murray, 3 Wall. 1.

206 Livingston v. Bishop, 1 Johns. 290.

297 Wilkes v. Jackson, 2 Hen. & M. (Va.) 355.

208 Hunt v. Bates, 7 R. I. 217.

209 Cooley, Torts, 138, citing Livingston v. Bishop, 1 Johns. 290; Elliott v. Porter, 5 Dana (Ky.) 299; Thomas v. Rumsey, 6 Johns. 291; Barrett v. Third Ave. R. Co., 45 N. Y. 628; Woods v. Pangburn, 75 N. Y. 495; Gross v. Pennsylvania P. & B. R. Co., 65 Hun, 191, 20 N. Y. Supp. 28; Sharp v. Gray, 5 B. Mon. (Ky.) 4; United Society v. Underwood, 11 Bush (Ky.) 265; Elliott v. Hayden, 104 Mass. 180; Knight v. Nelson, 117 Mass. 458. See Stone v. Dickinson, 5 Allen (Mass.) 29; Brown v. Cambridge, 3 Allen (Mass.) 474; Griffe v. McClung, 5 W. Va. 131; Morgan v. Chester, 4 Conn. 387; Ayer v. Ashmead, 31 Conn. 447; Wright v. Lathrop, 2 Ohio, 33; Sanderson v. Caldwell, 2 Aikens (Vt.) 195; Stewart v. Martin, 16 Vt. 397; Turner v. Hitchcock, 20 Iowa, 310; McGehee v. Shafer, 15 Tex. 198; Union, etc., Co. v. Shacklett, 19 Ill. App. 145; Allen v. Wheatley, 3 Blackf. (Ind.) 332, approved in Fleming v. MeDonald, 50 Ind. 278; White v. Philbrick, 5 Me. 147; Golding v. Hall, 9 Port. (Ala.) 169; Blann v. Crocheron, 20 Ala. 320; Page v. Freeman, 19 Mo. 421; Boardman v. Acer, 13 Mich. 77. Compare Brady v. Whitney, 24 Mich. 154; Kenyon v. Woodruff, 33 Mich. 310. If judgment is taken against one alone, tender of payment upon that is no bar, unless the plaintiff elects to receive it. Blann v. Crocheron, 20 Ala. 320; in federal courts, see Albright v. McTighe, 49 Fed. 817; Birdsell v. Shaliol, 112 U. S. 485, 5 Sup. Ct. 244; Jennings v. Dolan, 29 Fed. 861; Power v. Baker, 27 Fed. 396; Child v. Boston & F. H. Iron Works, 19 Fed. 258; Collard v. Delaware, L. & W. R. Co., 6 Fed. 246; Barnes v. Viall, 6 Fed. 661-671.

210 Snapp v. Roche, 94 N. Y. 329. And see Thompson v. Halbert, 109 N. Y. 329, 16 N. E. 675.

English and American cases in answer to this question: "Did the plaintiff, by suing the sheriff alone, recovering judgment for about $6,000, and receiving from him $830 on said judgment, thereby preclude himself from maintaining a suit against the defendants for the same trespass? Is the judgment, or the judgment and part payment, in that case, a bar to this action?" The conclusion was reached that nothing short of full satisfaction, or that which the law must consider as such, can make such judgment a bar. A partial satisfaction by one of the wrongdoers for damages occasioned by the joint wrongful act of both is, however, properly received in evidence to mitigate damages. While the plaintiff can have only one satisfaction, the satisfaction of the judgment must be the one which he has elected to take. In Knickerbacker v. Colver 211 it was distinctly held that, where there were two separate suits for the same trespass, the plaintiff, may elect de melioribus damnis, but can have only one satisfaction. The plaintiff may make his election (e. g. to take the larger judgment or to pursue the solvent party); but, when he has made his election, he is concluded.212 Satisfaction of one judgment, however, will not preclude him from collecting his costs on other judgments; and he may take out execution for such costs.213 The bringing of an action and the recovery of judgment against one of a number of wrongdoers, who are jointly and severally liable, is not an election of remedies as to the others, and does not sever their joint and several liability; but the wrongdoer who had been sued has a personal right to object to making him a party to the joint action.

Judgment does not Divest Property.

Under both English and American law, a judgment against one .of several joint tort feasors, without satisfaction, does not vest

211 S Cow. 111.

212 Power v. Baker, 27 Fed. 396.

213 Windham v. Wither, 1 Strange, 515; Livingston v. Bishop, 1 Johns. (N. Y.) 290-293; Knickerbacker v. Colver, 8 Cow. 111; First Nat. Bank v. Indianapolis Piano Manuf'g Co., 45 Ind. 5; Ayer v. Ashmead, 31 Conn. 447. See Lord v. Tiffany, 98 N. Y. 412. In a joint action for libel, several judgments were rendered. The smaller judgment was paid. Upon payment of costs, the other defendant was entitled to have the judgment against him satisfied. Breslin v. Peck, 38 Hun, 623.