brought to recover for the defendant's enticement of the plaintiff's minor son from his service and inducing him to enlist in the army for three years, it was held that the plaintiff [197] could only recover damages for the loss of service up to the time of the commencement of the action, or at most up to the time of trial.1 1 Covert v. Gray, 34 How. Pr. 450. In this case there were numerous contingencies with elements of probability in each: the enlisted man might be discharged by reason of sickness or wounds; his enlistment being illegal, it was the duty of the war department to discharge him; there was no presumption that the war would continue for three years. In Moore v. Love, 3 Jones' L (N. C.) 215, Battle, J., thus discusses the distinction between cases where the cause of action is an entirety and those which admit of a succession of suits: "It is clearly stated by Lord Mansfield, in the case of Robinson v. Bland, 2 Burr. 1077, 'When a new action may be brought and satisfaction obtained thereupon for any duties or demands which may have arisen since the commencement of the depending suit, that duty or demand shall not be included in the judgment upon the former action. As in covenant for the non-payment of rent, or of an annuity payable at different times, you may bring a new action toties quoties as often as the respective sums become due and payable. So in trespass and in tort, new actions may be brought as often as new injuries and wrongs are repeated; and therefore damages shall be assessed only up to the time of the wrong complained of. But where a man brings an action of assumpsit for principal and interest upon a contract obliging the defendant to pay such principal money, with interest from such a time, he complains of the non-payment of both; the interest is an accessory to the principal, and he cannot bring a new action for any interest grown due between the commencement of his action and the judgment in it.' What is here so well said about the interest being the accessory to the principal money, and therefore recoverable down to the time of the trial, applies with equal force to the case of trespass and tort where the wrong done is not repeated or continued, though the damage resulting from it may not cease being developed until after the time when the writ was issued. In the latter case the plaintiff is not limited solely to the consequential damage which has actually occurred up to the trial of the cause, but he may go on to claim relief for the prospective damages which can then be estimated as reasonably certain to occur. "This brings us to the consideration of the case of McKay v. Bryson, 5 Ired. 216, which may seem at first view to militate against the distinction by which we have endeavored to reconcile the decisions which have been made upon the subject of prospective damages. It was an action on the case brought to recover damages for enticing the plaintiff's apprentice from his service and conveying him out of the state. The testimony showed that the boy was bound apprentice to learn the business of a tailor, and that he continued in the service of his master until he was carried away by the defendant, and § 123. Future damages for personal injuries. In ascertaining the amount of damages resulting from a personal injury the jury may consider the bodily pain and mental suffering which have occurred and are likely to occur in the future [198] when last heard from he was in Tennessee. The suit was brought some time before the expiration of the term of service, and the jury were in structed that they might give damages as for a total loss of service during the whole period of apprenticeship subject to a deduction on account of the plaintiff's chance of regaining the boy. The charge given to the jury in the court below was approved in this court upon the authority of the case of Hodsoll v. Stallebrass, 11 A. & E. 301. No other case appears to have been cited and the court do not advert to the fact that in Hodsoll v. Stallebrass the injury from which the loss accrued to the plaintiff was a single act of wrong; but they do advert to and state the fact that the loss caused by the tort of the defendant was in effect a total loss of the plaintiff's apprentice. The only wrong alleged in the declaration or proved on the trial was that of carrying the apprentice beyond the limits of the state, which caused a total loss of his services to his master. In this view the case may well be sustained upon the principle applicable to the second class of cases to which we have referred. That the removal of the apprentice out of the state may be regarded in the same light as if a permanent injury had been inflicted upon him. We have the strong analogy of the case of trover by one tenant in common against another for the destruction of the article held in common. If the article be sent off by the defendant to a place unknown to the plaintiff, so that, as to him, it is totally lost, it is equivalent to its destruction. Lucas v. Wasson, 3 Dev. 398. The circumstances of the present case are very different from those in McKay v. Bryson. The apprentices were carried by the defendant to his residence in an adjoining county, only twentyfive miles distant from the plaintiff. They were not concealed from him; and it appears from the proof that he knew where they were. The continued detention of them by the defendant was a succession of torts for which he might bring new actions from time to time; and hence his case falls into the class with Hambleton v. Veere, and all those on which damages can be given for the loss of service up to the commencement of the suit only." The true distinction is undoubtedly pointed out in the foregoing opinion, that the damages in an action cannot include those arising after suit is brought if a new action could be brought for them; but it may admit of a doubt if the case was properly disposed of upon that test. A trespasser who takes personal property and retains it may be said to commit a succession of torts while he retains the property; but in an action for such a taking the injured party would undoubtedly be obliged to make his full claim of damages. He would not be entitled to a succession of actions. In cases where apprentices have been enticed away, and the enticer has not, by the injury or otherwise, made it reasonably certain that the apprentice will not return, prospective damages are not denied because a new action may be brought for them but because they are not susceptible of proof; they are not certain. But if the defend in consequence thereof as well as the loss of time, expense of medical and other attendance and the diminution of ability to earn money.1 § 124. Only present worth of future damages given. In a Vermont case the court say that what the jury give the injured party for prospective damages is like payment in advance, and in fixing the same that fact may be taken into consideration and the amount may properly be reduced to its present worth.2 § 125. Continuous breach of contracts or infraction of rights not an entirety. A continuous breach of contract or infraction of a right is not an entirety. It is at any time severable for the purpose of redress in damages for the injury already suffered. This is the case whenever a continuous duty imposed by law or by contract is uninterruptedly neglected, whether such departure from the line of duty be by positive. acts or by culpable inaction. There is a legal obligation to discontinue a trespass or to remove a nuisance. So a covenant to keep certain premises in repair for a specified period imposes a continuous duty, and when neglected gives a continuous cause of action." When an action is brought the injury ant has control, and will have it in the future, he may be charged with depriving the master of the services of an apprentice for the whole term for the same reason that he might be charged with the full value of a horse tortiously taken. See Herriter v. Porter, 23 Cal. 385. 1 Bay Shore R. Co. v. Harris, 67 Ala. 6; Curtiss v. Rochester, etc. R. Co., 20 Barb. 282; Atchison v. King, 9 Kan. 550; Welch v. Ware, 32 Mich. 77; Birchard v. Booth, 4 Wis. 67; Morely v. Dunbar, 24 Wis. 183; Wilson v. Young, 31 Wis. 574; Goodno v. Oshkosh, 28 Wis. 300; Spicer v. Chicago, etc. R. Co., 29 Wis. 580; Karasich v. Hasbrouck, 28 Wis. 569; Pennsylvania R. Co. v. Dale, 76 Pa. St. 47; Tomlinson v. Derby, 43 Conn. 562; Fulsome v. Concord, 46 Vt. 135; Nones v. Northouse, id. 587; Metcalf v. Baker, 57 N. Y. 662; New Jersey Exp. Co. v. Nichols, 33 N. J. 2 Fulsome v. Concord, 46 Vt. 135. 4 Per Lord Denman in Clegg v. Dearden, 12 Q. B. 601; Savannah, etc. Ry. Co. v. Davis, 25 Fla. 917; Adams v. Hastings & D. R. Co., 18 Minn. 260. 5 Cooke v. England, 27 Md. 14; Beach v. Crain, 2 N. Y. 86; Bleecker v. Smith, 13 Wend. 530; Phelps v. New Haven, etc. Co., 43 Conn. 453; Keith v. Hinkston, 9 Bush, 283. to that time is segregated and recovery is confined to such damages as result from the breach or wrong continued to the commencement of the action.1 § 126. Continuance of wrong not presumed. [199-201] The law will not presume a continuance of a wrong, nor allow a license to continue it or a transfer of title to result from the recovery of damages for prospective misconduct. But in equity the owner of real property upon which a trespass has been committed may restrain the continuance of the wrong and thus prevent a multiplicity of actions at law to recover damages. In such an action the court may determine the amount of damages the owner would sustain if the trespass were permanently continued, and it may decree that upon their payment the plaintiff shall give a deed or convey the right to the defendant.3 § 127. Necessity of successive actions. The neces- [202] sity and advantage of successive actions to recover damages which proceed from a continuous and still operating cause are very obvious; for besides the considerations which have already been mentioned the injurious effects so blend together that in most instances it would be wholly impracticable to accurately apportion them. Therefore the right to recover for all damages which have been suffered to the time of bringing the first action, in the next, all damages which have been suffered from that time to that of commencing such second action, and so on while the cause continues, is the most conven 1 Id.; Sackrider v. Beers, 10 Johns. 241; Crain v. Beach, 2 Barb. 120; Beach v. Crain, 2 N. Y. 86; Shaw v. Etheridge, 3 Jones' L. 301; Brasfield v. Lee, 1 Ld. Raym. 329; Whitehouse v. Fellowes, 10 C. B. (N. S.) 765; Mahon v. New York C. R. Co., 24 N. Y. 658; Phillips v. Terry, 3 Keyes, 313; Hayden v. Albee, 20 Minn. 159; Thompson v. Gibson, 7 M. & W. 456; Beckwith v. Griswold, 29 Barb. 291; Bradley v. Amis, 2 Hayw. 390; Caruthers v. Tillman, 1 id. 501; Duncan v. Markley, Harp. 276; Moore v. Love, 3 Jones' L 215; Cole v. Sprowl, 35 Me. 161; Hudson v. Nicholson, 5 M. & W. 437. 2 Adams v. Hastings & D. R. Co., 18 Minn. 260; Ford v. Chicago, etc. R. Co., 14 Wis. 609; Uline v. New York, etc. R. Co., 101 N. Y. 98; Savannah & O. C. Co. v. Bourquin, 51 Ga. 378; Hanover W. Co. v. Ashland I. Co., 84 Pa. St. 279; Whitmore v. Bischoff, 5 Hun, 176; Sherman v. Milwaukee, etc. R. Co., 40 Wis. 645; Russell v. Brown, 63 Me. 203; Bowyer v. Cook, 4 C. B. 236; Holmes v. Wilson, 10 A. & E. 503; Battishill v. Reed, 18 C. B. 696; Cumberland C. Co. v. Hitchings, 65 Me. 140. 3 Pappenheim v. Metropolitan E. Ry. Co., 128 N. Y. 436; Amerman v. Deane, 132 id. 355. See vol. 3, ch. 16 ient course of practice for practical redress that can be devised.1 In cases of contracts imposing a continuous duty, or a duty the continued neglect of which is an uninterrupted breach, from which results a steady accretion of damage, the injured party may bring a succession of actions or treat defaults having that significance as a total breach,2 and recover damages accordingly. Of this nature was the contract in Crain v. Beach,3 where the plaintiff had granted to the defendants a perpetual right of way over his land and covenanted to erect a gate of a specified description at the terminus, to which the defendants covenanted in the same instrument to make all necessary re[203] pairs. The plaintiff erected the gate, which was subsequently removed by some unknown person. It was held that the defendants were bound to replace it; the covenant was continuing; an action brought thereon after the removal of the gate for damages occasioned by cattle coming on the plaintiff's land in consequence of there being no gate, and a recovery therein, were no bar to another action on the same covenant for damages accruing after the commencement of the first suit. The defendants' default was not a total breach, nor declared and recovered on as such, and hence they were not thereby relieved of the continuing obligation of the covenant. If it were an entire contract, however, any breach would be or might be treated as a total breach. Covenants for support and maintenance during life are entire, and any breach entitles the injured party to recover entire damages as for a total breach," but as they impose a continuous duty the injured party may have a succession of actions treating any acts of breach as partial only." Uline v. New York C. R. Co., 101 N. Y. 88; Mitchell v. Darley Main Colliery Co., 14 Q. B. Div. 125. 2 Grand Rapids, etc. R. Co. v. Van Dusen, 29 Mich. 431; Royalton v. Royalton & W. T. Co., 14 Vt. 311; Withers v. Reynolds, 2 B. & Ad. 882; Fish v. Folley, 6 Hill, 54; explained in Crain v. Beach, 2 Barb. 124; Keck v. Bieber (Penn.), 24 Atl. Rep. 170. 32 N. Y. 86; 2 Barb. 120. 4 Fish v. Folley, 6 Hill, 54. 5 Schell v. Plumb, 55 N. Y. 592; Dresser v. Dresser, 35 Barb. 573; Shaffer v. Lee, 8 id. 412; Trustees of Howard College v. Turner, 71 Ala. 429. See Wright v. Wright, 49 Mich. 624. 6 Id.; Fiske v. Fiske, 20 Pick. 499; Berry v. Harris, 43 N. H. 376; Ferguson v. Ferguson, 2 N. Y. 360; Turner v. Hadden, 62 Barb. 480. |