23 N.C. 147 | N.C. | 1840
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 (149) cause of action. There must be both a wrong and 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. No error. *117
