Miller v. Eskridge, 23 N.C. 147, 1 Ired. 147 (1840)

June 1840 · Supreme Court of North Carolina

23 N.C. 147, 1 Ired. 147

LEVI MILLER vs. JOHN G. ESKRIDGE.

If an action be wrongfully brought in the name of one without bis knowledge or consent, and he have to pay the costs upon its dismission, his right of action for the tort against the person who wrongfully sued in his name, accrues, not from the commencement of the wrongful action, but only from the time when he is compelled to pay the money on account of it; and consequently the statute of limitations will begin to run only from that time.

This was an action on the 'case in which the plaintiff declared in torty and upon the trial at Lincoln, on.thc last circuit, before his honor Judge Settle, the only question was, whether the plantiff’s claim was barred by the statute oí limitations. It appeared that the defendant, without the knowledge or consent of the plaintiff, instituted a suit before a magistrate, in the county of Rutherford, in the name of the plaintiff, against one Samuel Green, and prosecuted the suit by appeal until it was dismissed in the Superior Court; whereupon an execution issued against the plaintiff for the costs, which he paid within less than three years before the bringing of the present action. The warrant, which was the commenceme'nt of the suit against Green, was issued more than three years before the institution of the present suit. The plaintiff contended that the statute did not commence running until the payment of the money under the execution for the costs, while the defendant insisted that it commenced running from the wrongful institution of the suit against Green in the plaintiff’s name.

His Honor being of opinion with the plaintiff, a verdict and judgment were rendered for him, and the defendant appealed.

No counsel appeared for either party in this court.

Ruffin, Chief Justice.

"We think the statute of limitations does not bar the plaintiff’s action. The statute begins to run from the time the plaintiff might first have brought the same action for the injury, for which he therein seeks redress. Here, the action is to recover back money paid by the plaintiff as the cost of a suit instituted in the name of the plaintiff, without his leave; and it is an action on the case in tort, for consequential damages. When did it arise? From the plaintiff’s paying the money: for then he first sustained actual injury or damage. If one dig a pit in the highway, all'the world cannot sue him; but he only who falls into it. Therefore, the person who falls into it and gets hurt, may sue within three years from the time of his fall; although the pit were dug long before. So, in the case before us, the plaintiff could not have sued before he paid the money. — .for, what damage could, he lay? Before that, he could complain of nothing but the danger, that he might be compelled to pay the costs. But such a possibility is not a good cause of action. There must be both a wrong some loss from it, before one can bring a suit.

This is not like an action of trespass for a direct and immediate injury; in which the wrong and its effects are simultaneous. Nor is it like assumpsit, when after a breach, the damages continue to be developed, or even to increase, up to the trial; for, in such a case, the statute must necessarily run from the breach itself, since, at that time, nominal damages, at the least, were sustained; and, therefore, an action might then have been brought. But here, until payment by the plaintiff, he had no action; for, until that event, he suffered from the suit, brought in his name, no more than any other person did.

Per Curiam. Judgment affirmed.