Middleton v. Wilmington & Weldon Railroad

Smith, C. J. (after stating the facts). The action is for a penalty which the statute gives “to any person suing for *169 the same.” The defendant company sets up in bar of the recovery, an agreement entered into between itself and O. P. Middleton, a son of the plaintiff, who was claiming the penalty, for a reference, and the award made against the defendant's liability. The evidence in support of this defence was properly ruled out. No interest is acquired by any person which can be the subject of compromise or arbitration, until the •demand for the penalty is asserted by the institution of suit for its recovery. The reference and arbitration were entirely gratuitous on the part of O. P. Middleton, and whatever misplaced •confidence his assuming to act in the controversy may have inspired in the company, that it was with the concurrence of his father, the owner, and that the award would be acquiesced in, it •can form no defence to the action by whomsoever brought, for it is not for the benefit of the owner of the goods, but wholly puni-tory in its effect. When the suit is commenced, an interest vests in the plaintiff, contingent upon his success, but no sooner, to the •exclusion of others. The matter offered in evidence was therefore wholly irrelevant. Our attention has been directed to the ■question, in whose name the action should be brought, and to the conflicting rulings upon the point made in this Court. The •construction of the §§ 1212 and 1213 of The Code, in Norman v. Dunbar, 8 Jones, 319, is that the suit should be in the name •of the person claiming the penalty, and to whom, upon a recovery, it belongs, while in the subsequent case of Duncan v. Philpot, 64 N. C., 479, it is held that, it should be prosecuted in the name of the State for his use. But in looking to the cases which have been maintained in this Court, and to which no objection on this ground seems to have been taken, we find that all have been in the name of the person suing and none in the name of the State. Branch v. Railroad, 77 N. C., 347; Katzenstein v. Railroad, 84 N. C., 688; Keeter v. Railroad, 86 N. C., 346; Whitehead v. Railroad, 87 N. C., 255; Branch v. Railroad, 88 N. C., 570. This uniform practice, acquiesced in, if not sanctioned by the Court, must be deemed a settlement of the con *170 struction of the statute. There is'no error and the judgment, must be affirmed. No error. Affirmed.