
    
      The Executors of Sinclair v. The Bank of South Carolina.
    
    When an'agent is sued for negligence, whether in assumpsit for breach of contract, or in case for violation of duty, the gist of the action is the negligence, and the Statute of Limitations begins to run from the time of the negligence, and not from the time of the loss thereby occasioned.
    
      Before Mr. Justice O’Neall, at Charleston, May Term, 1847.
    This was an action of assumpsit brought by the plaintiffs against the defendants, to recover for a loss, sustained under the following circumstances;.— The plaintiffs’ testator had a note made by Edward Lynah, payable to James Lynah or order, for ¡$400, indorsed by James Lynah to the plaintiffs7 testator, by whom it was lodged in the Bank of South Carolina for collection. It was protested for non-payment, and notice of non-payment was so irregularly given by the Bank Notary to the endorser, James Lynah, that the money could not be collected from him. This neglect of the Bank took place 1st July, 1823. Edward and James Lynah both took the benefit of the Insolvent Debtor’s Act, and could not, therefore, plead the Statute of Limitations. James Lynah was sued in May, 1843, and the plaintiffs failed to recover against him on account of the neglect of the Bank, above stated. After this, the plaintiffs brought this action. The defendants pleaded the Statute of Limitations.
    The Circuit Judge thought the Statute began to run from the neglect of the Bank, 1st July, 1823, and not from the failure of the plaintiff to recover from James Lynah; and that the plaintiffs were therefore barred. The jury found for the defendant, and the plaintiffs appealed, on the ground— Because his Honor erred in instructing the jury that the plea of the Statute of Limitations was a bar to the right of the plaintiffs to recover.
    Magrath, for the motion.
    Until the period when the neglect has been made apparent, the Statute does not run. — Thompson v. The Bank, Riley’s Rep. 86; Thomas v. Er-vin, Cheves, 22; Angelí on Limitations, 181 to 188; Story on Agency, 211; Crumpton v. Chandles, 4 Espi. 21; Bice v. Horner, 12 Mass. Rep. 130. Whenever the agent does an act which is afterwards proved to be insufficient, the Statute does not run until it is shown to be so.
    J. Walker, contra.
    
    There was either a good protest, or none. See the case of Sinclair v. Lynah, 1 Spears, 44. When was it that the Bank was guilty of that default which made them liable to an action at law 1 Whenever the party had a right to sue, from that time the Statute runs. Lynah was discharged at the moment the Bank made default. It was the. laches of plaintiffs afterwards, in not proceeding against the Bank within four years. The agent is-liable to suit as soon as the damage is done. (See 6 Vesey, 182, and those cases where the Statute does not run where there has been fraud, until its discovery.) The Bank was a mere agent, and no guarantor. — 3 Brod. and Bing. 372; 2 Carr, and P. 238.
    Magrath, in reply. Until the liability of the Bank was ascertained, the executors of Sinclair had no right of action against it. Did the neglect itself give the action, or did it arise only after the neglect was ascertained? Lynah may not have been entitled to a protest, or the protest insufficient to bind the Bank. How were these things to be found out until after the suit between the executors and Lynah ? The fact of Lynah’s discharge, after suit, is proof of the Bank’s liability — and the only proof.
   Wardlaw, J.

delivered the opinion of the Court.

When an agent is sued for negligence, whether in assump-sit for breach of contract, or in case for violation of duty, the gist of the action is the negligence, and the Statute of Limitations begins to run from the time of the negligence, and not from the time of the loss thereby occasioned. The cause of action accrued when the contract was broken by the nonperformance of the act undertaken, or the duty which had been incurred was violated. Subsequent loss, actually induced, is only the development by time of what, with a full knowledge of all circumstances, might before have been foreseen and calculated. See Angell on Limitations, 188; Thomas v. Ervin, Cheves, 22; Clark v. Reeder, 1 Spears, 405; 2 Carr and Payne, 238, and the cases cited in these. A contrary rule would be wholly unsafe; for the evidence which a defendant, at the time the negligence is charged to have taken place, had to resist the charge, may be lost before the damage ensues which the plaintiff would show.

In the case before us it was only as evidence of their loss, indeed only as evidence of James Lynah’s refusal to pay, notwithstanding an irregular protest, that it was material for the plaintiff's to show their failure to recover from James Ly-nah: the cause of that failure could not have appeared from the record of their suit against him: against the Bank that record could have been conclusive of nothing more than that they had failed. When the Bank gave the irregular notice it became liable to the plaintiffs; that they did not know of this, brings them within no exception to the Statute of Limitations. If they had then sued, they would, by showing that the indorser had been discharged through the negligence of the Bank, have recovered all that they could recover if they were allowed to proceed now. The case would have been the same then as now — the law the same, the proof somewhat more difficult.

The motion is dismissed.

Richardson, J. O’Neall, J. Evans, J. and Frost, J. concurred.

Motion refused.  