erty.138 As an action for malicious prosecution cannot be brought, unless and until the proceedings complained of have terminated, the statute of limitations will begin only upon. such termination.1 But a cause of action for false imprisonment is complete as soon as the imprisonment ceases, as where the plaintiff, having been arrested, gives a bond and is released, though the proceedings on which the arrest was made have not been terminated.14

139

When the wrong consists in the unlawful exercise of dominion over the goods of another, which constitutes the tort conversion, it will be found 141 that the cause of action is sometimes not complete until the owner has demanded his property of the person having possession, as where such possession was lawfully obtained, and the exercise of dominion consists in its unlawful detention. Under such circumstances the statute will run from the time of the demand and refusal.142 On the other hand, where demand is not essential, then it will start whenever the right to sue is complete, as where the original taking was unlawful,143 or there has been a distinct act of dominion, such as the disposal of the property, though the original taking was lawful.144

We now come to cases where proof of damage is essential, and here the cause of action will be complete, and the statute will begin to run, only when such damage occurs.1

145

recently discovered who did the wrong makes no difference." Gale v. McDaniel, 72 Cal. 334, 13 Pac. 871.

138 Wood v. Currey, 57 Cal. 208; Read v. Markle, 3 Johns. (N. Y.) 523.

139 Carnes v. Atkins Bros. Co., 123 La. 26, 48 South. 572; Printup v. Smith, 74 Ga. 157, Hackler v. Miller, 79 Neb. 209, 114 N. W. 274. 140 Dusenbury v. Keiley, 85 N. Y. 383, 61 How. Prac. (N. Y.) 408, affirming 8 Daly (N. Y.) 537, 58 How. Prac. (N. Y.) 286.

141 See infra, p. 379.

142 Reizenstein v. Marquardt, 75 Iowa, 294, 39 N. W. 506, 1 L R. A. 318, 9 Am. St. Rep. 477; Haire v. Miller, 49 Kan. 270, 30 Pac. 482; Roberts v. Berdell, 61 Barb. (N. Y.) 37, affirmed 52 N. Y. 644; Shuffler v. Turner, 111 N. C. 297, 16 S. E. 417.

143 Schroeppel v. Corning, 5 Denio (N. Y.) 236.

144 Bell v. Bank of California, 153 Cal. 234, 94 Pac. 889; Kelsey v. Griswold, 6 Barb. (N. Y.) 436; Granger v. George, 5 Barn. & C. 149.

145 Bank of Hartford County v. Waterman, 26 Conn. 324; How.

Thus, where mines were worked by one who left insufficient support for the upper soil, by reason of which a house situated over the mines sank some time after the latter had ceased to be worked, it was held that the statute began to run from the sinking of the house, and not from the time of the working.146 A similar rule is applied where one excavates soil upon his own premises, and thereby removes the natural support of his neighbor's land, so that it falls.147 Of this character, also, is the ordinary action for negligence. It matters not how long the omission to exercise the proper degree of care may have continued, there is no cause of action until injury is received, and from that time only will the statute run.148

The tort defamation belongs in both classes. Where the charge is of so grave a nature that damage will be presumed to have resulted from its publication, the cause of action is complete in itself, and with the publication, the statute will start. If, however, it is of such a character that damage is not inferred, but must be shown, then the cause of action dates from the occurrence of the damage.149

ard County v. Chicago & A. R. Co., 130 Mo. 652, 32 S. W. 651; Henry v. Ohio River R. Co., 40 W. Va. 234, 21 S. E. S63.

146 Backhouse v. Bonomi, 9 H. L. Cas. 503, 7 Jur. N. S. 809, 34 L. J. Q. B. 181, 4 L. T. Rep. N. S. 754, 9 Wkly. Rep. 769, 11 Eng. Repr. 825.

147 Ludlow v. Hudson River R. Co., 6 Lans. (N. Y.) 128.

148 Thus, where a bridge was constructed of unsafe materials and had been maintained for some time prior to the occurrence of plaintiff's injury, the statute of limitations will run from the date of the injury, and not from the time the negligence began. Board of Com'rs of Wabash County v. Pearson, 120 Ind. 426, 22 N. E. 134, 16 Am. St. Rep. 325. To the same effect, Mayor, etc., of City of Huntsville v. Ewing, 116 Ala. 576, 22 South. 984; Leroy v. City of Springfield, 81 Ill. 114. The fact that the injured party did not recover for some time will not extend the time for bringing the action. Piller v. Southern Pac. R. Co., 52 Cal. 42.

149 Saunders v. Edwards, 1 Sid. 95. And see opinion of Lord Cranworth in Backhouse v. Bonomi, 9 H. L. Cas. 503, 512, 7 Jur. N. S. 809, 34 L. J. Q. B. 181, 4 L. T. Rep. N. S. 754, 8 Wkly. Rep. 769, 11 Eng. Repr. 825.

CHAPTER V

GENERAL PRINCIPLES (CONTINUED)-PARTIES

38. The Party Wronged.

The Wrongdoer-Several Liability-Personal Culpability.
Public Officers in General.

Judicial and Discretionary Acts.

Ministerial Acts.

Infants.

39.

40.

41.

42.

43.

44.

45.

46.

Servants and Agents.

Insane Persons.

Husband and Wife.

THE PARTY WRONGED

38. Though the party whose legal right has been invaded will be entitled to redress, his power to transfer his cause of action will depend upon the nature of the injury and is in general restricted to wrongs done to property rights.

The Sufferer

Assuming that there has been the violation of a legal right and that the existence of damage has been proven in cases where such proof is required, the law will then, of course, supply a remedy to the injured party. It matters not that the sufferer may, for many purposes, labor under a disqualification, as in the case of an infant, or an insane person." He may sue

1 Estate of Cahill, 74 Cal. 52, 15 Pac. 364; Bloomingdale v. Chittenden, 74 Mich. 698, 42 N. W. 166; Clasen v. Pruhs, 69 Neb. 278, 95 N. W. 640, 5 Ann. Cas. 112; Code Civ. Proc. N. Y. §§ 468-470. Recovery denied for negligence causing injury (Allaire v. St. Luke's Hospital, 184 Ill. 359, 56 N. E. 638, 48 L. R. A. 225, 75 Am. St. Rep. 176), or death (Dietrich v. Northampton, 138 Mass. 14, 52 Am. Rep. 242)

2 Reese v. Reese, 89 Ga. 645, 15 S. E. 846; Smith v. Smith, 106 N. C. 498, 11 S. E. 188; Code Civ. Proc. N. Y. § 2340.

through his guardian, next friend, or committee. This assumes, of course, that the party has a cause of action. For instance, it has been held that a child may not recover damages from a parent for personal injuries inflicted by the latter during the infant's minority, the reason being that "the peace of society and of the families composing society, and a sound public policy, designed to subserve the repose of families and the best interests of society, forbid to the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent."

8

The common-law status of a feme covert was somewhat peculiar. Husband and wife were one, and it has sometimes been observed that that one was the husband. Both were required to be joined as plaintiffs in actions for injuries to her person, and in certain cases of defamation." Actions to recover possession of her real property were subject to this rule, as were those for injuries to her personal property where the cause of action was complete prior to coverture. On the other hand, since the personal property of the wife vested in the husband, he alone could sue to recover it, or for injuries thereto committed during after birth. Allowed posthumous child for father's death. Nelson v. Galveston, H. & S. A. Ry. Co., 78 Tex. 621, 14 S. W. 1021, 22 Am. St. Rep. 81, 11 L. R. A. 391. Allowed for liquor sold parent of a child then unborn. State v. Soale, 36 Ind. App. 73, 74 N. E. 1111; Phair v. Dumond, 99 Neb. 310, 156 N. W. 637. Intimated in Nugent v. Brooklyn Heights R. Co., 154 App. Div. 667, 139 N. Y. Supp. 367, that action might lie, though recovery denied as relation of carrier and passenger existed only between mother and defendant.

3 Hewlett v. George, 68 Miss. 703, 711, 9 South. 885, 13 L. R. A. 682, per Woods, J.; McKelvey v. McKelvey, 111 Tenn. 388, 77 S. W. 664, 64 L. R. A. 991, 102 Am. St. Rep. 787, 1 Ann. Cas. 130.

4 Long v. Morrison, 14 Ind. 595, 77 Am. Dec. 72; Sanford v. Augusta, 32 Me. 536; Treusch v. Kamke, 63 Md. 278; Schouler on Domestic Relations, § 77.

5 I. e., where the words were actionable without proof of special damage. Joinder was unnecessary where special damage must be shown. Beach v. Ranney, 2 Hill (N. Y.) 309; Gibson v. Gibson, 43 Wis. 23, 28 Am. Rep. 527.

6 Atkinson v. Rittenhouse, 5 Pa. 103; Westcott v. Miller, 42 Wis.

7 Milner v. Milnes, 3 T. R. 627.

the marriage, while joinder was optional in actions for injuries to the wife's realty during coverture. By reason of their identity each was precluded from maintaining an action of tort against the other,10 and a subsequent divorce made no difference where the wrong had been committed during coverture.11

To ascertain the extent to which these rules have been repealed or modified, it will be necessary to examine the various Married Woman's Acts. Generally speaking it may be said that the feme covert may now sue as if sole,12 whether the action be to recover for personal injuries,13 for defamation,14 or concerns her separate property.15 While considerable liberality has been displayed, it has been held

8 George v. English, 30 Ala. 582; Gerry v. Gerry, 11 Gray (77 Mass.) 381; McCormick v. Pennsylvania Cent. R. Co., 49 N. Y. 303. Tallmadge v. Grannis, 20 Conn. 296. Contra, if the action was for waste. Thacher v. Phinney, 7 Allen (89 Mass.) 146.

10 Abbott v. Abbott, 67 Me. 304, 24 Am. Rep. 27; Schultz v. Schultz, 89 N. Y. 644; Phillips v. Barnet, 1 Q. B. D. 436, 45 L. J. Q. B. 277, 34 L. T. Rep. N. S. 177, 24 Wkly. Rep. 345.

11 Strom v. Strom, 98 Minn. 427, 107 N. W. 1047, 6 L. R. A. (N. S.) 191, 116 Am. St. Rep. 387; Phillips v. Barnet, 1 Q. B. D. 436, 45 L. J. Q. B. 277, 34 L. T. Rep. N. S. 177, 24 Wkly. Rep. 345.

12 "In an action or special proceeding, a married woman appears, prosecutes or defends alone or joined with other parties as if she was single. It is not necessary or proper to join her husband with her as a party in any action or special proceeding affecting her separate property. The husband is not a necessary or proper party to an action or special proceeding to recover damages to the person, estate or character of his wife." Code Civ. Proc. N. Y. § 450; and see Consol. Laws N. Y. 1909, c. 14 (Domestic Relations Laws) §§ 51, 57.

13 Chicago, B. & Q. R. Co. v. Dunn, 52 Ill. 260, 4 Am. Rep. 606; McGovern v. Interurban R. Co., 136 Iowa, 13, 111 N. W. 412, 13 L. R. A. (N. S.) 476, 125 Am. St. Rep. 215; Duffee v. Boston El. R. Co.. 191 Mass. 563, 77 N. E. 1036; McLimans v. City of Lancaster, 63 Wis. 596, 23 N. W. 689; Weldon v. Winslow, 13 Q. B. D. 784, 53 L. J. Q. B. 528, 51 L. T. Rep. N. S. 643, 33 Wkly. Rep. 219.

14 Pavlovski v. Thornton, 89 Ga. 829, 15 S. E. 822; Story v. Downey, 62 Vt. 243, 20 Atl. 321.

15 City of Chicago v. McGraw, 75 Ill. 566; Read v. Earle, 12 Gray (78 Mass.) 423; Van Cleve v. Rook, 40 N. J. Law, 25; Draper v. Stouvenel, 35 N. Y. 507; Norfolk & W. R. Co. v. Dougherty, 92 Va. 372, 23 S. E. 777; Weldon v. De Bathe, 14 Q. B. D. 339, 54 L. J. Q. B. 113, 53 L. T. Rep. N. S. 520, 33 Wkly. Rep. 328.