dissenting, with whom agrees MUN-SON, J. It is held that the fraudulent marriage, although it gave the plaintiff a cause of action at once, is not the cause declared upon, but that she is seeking to recover for the defendant’s “defrauding her out of thirty-three years of service, and having, as a result of his fraudulent acts, caused her to live for that length of time in a false conjugal positionthat it is error to assume that the cause of action for these wrongs accrued at the time of marriage, because the defendant’s fraud was continuous ; that he perpetrated a fraud upon her, not only by his statements before marriage, but by the act of marriage itself, and by his continuing to live with her as husband for a generation that the cause of action declared upon did not accrue till the fraud ceased, which was in April, 1894, when she discovered it, and that, therefore, she having been ignorant of it, the statute did not begin to run till that time. In this view it is said to be unnecessary to consider the effect of the concealment of the fraud by the defendant and of the want of a replication to the plea of the statute.
*19The case discloses that never but once after their marriage was anything said between the parties about his former marriage, and that was in 1864, when he told her that he had never been married before, that she was his lawful wife, and that he wished her never to mention the subject to him again. So from this time on, the defendant’s fraud consisted, not at all of false verbal declarations, but wholly of the concealment of the fact of his former marriage, and of a continuous assertion by conduct only, of the lawfulness of his marriage with the plaintiff.
It is worthy of note that the ground taken by the court on this question was not suggested by the plaintiff in argument, and so was not discussed at all at the bar. The plaintiff’s position, as stated in her brief, was this :
“The claim of the plaintiff upon the trial below with reference to the statute of limitations was and now is, that she acquired a cause of action against the defendant in virtue of his representations that induced the marriage; that in less than six years after the accruing of that right of action the defendant perpetrated a distinct and substantive fraud for the purpose of preventing her from ascertaining her said right of action, and continued this fraud down to a period within less than six years before the commencement of her suit; and that she did not discover and ought not to have discovered- the original fraud, because of the subsequent fraud of the defendant.”
It would seem from the opinion that the plaintiff did suggest in argument the ground the court takes, for the opinion says that
“One must bear in mind that the plaintiff insists that the representations of the defendant, with his subsequent conduct, constituted a continuous representation which continued to deceive the plaintiff.”
But this was said, not as a suggestion of that ground, but in connection with, and as a part of, the claim made and the position taken in what I have quoted from the brief, as will be seen if the brief is reported with sufficient fullness.
*20That it was not intended as a suggestion of that ground is clear from what is subsequently said in the brief, thus :
“Let it be clearly observed what the question is. It is not, Does the statute begin to run from the discovery of the fraud out of which the right of action grows ? but, Is the subsequent concealment of the fraud an answer to the statute? ”
The brief then goes on to say, that the latter question ought to be answered in the affirmative, and has been in a majority of instances; that it should be particularly observed that in so answering it most judges have assumed that the former question should be answered in the negative, as it has been by this court, that is, that want of knowledge of fraud is no answer to the statute, but that active concealment is.
Although the court says it is unnecessary to consider the effect of a want of a replication to the plea of the statute, yet it makes the question the same as it would have been had the plea been traversed, namely, whether the cause of action accrued within six years. So the question for discussion is, not whether the fraud is an answer to the statute, as Best, J., thought it would have been if replied in Clark v. Hougham, referred to in the opinion; but whether the cause of action accrued within the statutory period. Inasmuch as the defendant’s fraudulent representations were continuous, the court considers them indivisible in point of time, and, therefore, that they must be taken as a whole, and hence, altogether constitute but one cause of action, which did not accrue until they ceased on discovery, which was a third of a century after they began and a short time before suit, and consequently that recovery may be had for the whole time. I cannot accede to this proposition. The marriage itself was as much a part of the defendant’s continuous fraud as any of his subsequent representations. Indeed it was the first act of the drama of fraud that followed from that moment. Why then is it divisible from that as constituting a *21separate cause of action, if all that followed is indivisible? But all that followed is not indivisible, in my judgment. The plaintiff was constantly being wronged out of her services, and constantly being placed in a false and degrading conjugal position, and, therefore, was constantly suffering special damage by reason thereof, for the recovery of which I think she has an equally constantly accruing right of action, of which she could have availed herself by suit at any time had she known of her wrong, and that her ignorance of it did not prevent the right from accruing any more than it prevented the damage from arising, I think the case comes within the rule applied to continuing torts generally, and especially to those of a permanent nature, like trespasses of that character, consisting of a series of acts connected together but extending over a considerable period of time, which are distinguishable from repeated trespasses not of a permanent nature. Although permanent trespasses may be laid with a continuando, as they used to be, instead of on divers days and times, as the practice now is, and declared for in one count, to avoid the necessity of bringing separate actions or of inserting separate counts for each day’s trespass, yet in law they are considered as several trespasses' on each day, and, therefore, the continuance must be answered as well as the first act. 1 Wms. Saund. 24, n. 1. See Moulton v. Hill, Salk. 638. This is so because the acts of which such trespasses consist are divisible im point of time. Thus, staying and continuing in a house after breaking and entering is as divisible in point of time, as a trespass on land is in point of space, for it is a fresh trespass every day, and therefore the entire continuance-must be justified. Loweth v. Smith, 12 M. & W. 582. So-every continuance of a false imprisonment is a new imprisonment every day, and therefore a recovery therefor during its continuance is no bar to further recovery for its subsequent continuance. Leland v. Marsh, 16 Mass. 339. *22These are cases of continued wrong with fresh violence, and, therefore, in their facts, more like the case at bar, for the defendant’s continuous fraud may be regarded as having been committed afresh every day; but continuous wrongs without fresh violence, whether remedial in trespass or case, are precisely analogous in principle, I think. Thus, where the trustees of a turnpike road built buttresses to support it on the land of A, who thereupon sued them and their workmen in trespass for the erection, and accepted money paid into court in full for the trespass, it was held that after notice to the defendants to remove the buttresses and a refusal to do so, A might bring another action of trespass against them for keeping and continuing the buttresses on the land, and that the former recovery was no bar. Holmes v. Wilson, 10 Ad. & E. 503. See also Hudson v. Nicholson, 5 M. & W. 437 ; Thompson v. Gibson, 7 M. & W. 456; Bowyer v. Cook, 4 C. B. 236. So the wrongful and continuous diversion of the water of a spring is a continuing injury and affords a constantly accruing cause of action, so that the statute cuts off recovery back of the statutory period. Colrick v. Swinburne, 105 N. Y. 503. The same is true of the wrongful continuous flowing of land by means of a dam. Baldwin v. Calkins, 10 Wend. 166; Reed v. State, 108 N. Y. 407 ; Wells v. New Haven & Northampton Co. 151 Mass. 46; 21 Am. St. Rep. 423.
In Wilkes v. Hungerford Market Co. 2 Bing. N. C. 281, the plaintiff, a bookseller, having a shop by the side of a public thoroughfare, suffered loss in his business in consequence of the diversion of customers from the thoroughfare by the defendant’s unnecessary continuance of an obstruction across it for an unreasonable time. The statute under which the defendant caused the obstruction provided that no action should be brought against any person for anything done thereunder until notice, nor after six months after the cause of action arose. The grievance began *23April 2d, and ended July 2d, and the action was commenced December 30th. The court held that the cause of action began with the grievance, but that each successive day gave a new cause of action, and that therefore, the the suit having been commenced within six months of two days only before cesser of the cause of action, recovery could be had for only those two days ; that no other construction could be put upon the statute.
I would not, therefore, the question being as I have stated it, give the cause of action declared upon the scope in point •of time that the court gives it.