108 Va. 460 | Va. | 1908
delivered the opinion of the court.
This action was brought, and an attachment issued and levied as ancillary thereto, for the purpose of recovering damages from the defendant, Edward Cox, for killing, as alleged, Grimsley Halsey, the plaintiff’s intestate.
A general demurrer to the plaintiff’s declaration was sustained, and the action dismissed, upon the ground that the alleged trespass, if committed at all, had not been committed within twelve months next preceding the institution of the action, and that the plaintiff’s right to recover was, therefore, barred by the statute of limitations.
It was properly conceded at the bar of this court, that the defense of the statute of limitations could be made in this case by demurrer. Wherever the statute affects the right as well as the remedy, and it appears of record that the period of limitation has expired, the defense can be made by demurrer. Lambert v. Ensign Mfg. Co., 42 W. Va. 813, 26 S. E. 431.
In the case of Manuel, Admr. v. N. & W. Ry. Co., 99 Va. 188, 37 S. E. 957, this court held that, when the declaration in an action for death by wrongful act shows on its face that the death occurred more than twelte months before action
The grievance here complained of is alleged to have been inflicted while the parties were temporarily absent from this State, and in the State of North Carolina. It is, therefore, properly conceded that the laws of North Carolina govern— certainly as to the extent of the remedy. Dennis v. Atlantic Coast Line R. Co., 70 S. C. 254, 49 S. E. 869, 106 Am. St. Rep. 746; Nelson v. C. & O. Ry. Co., 88 Va. 971, 14 S. E. 838, 15 L. R. A. 583.
The statute of a foreign State being relied on as the ground of recovery in this case, it is necessary that such statute should be alleged in the declaration. The statutes of foreign States will not be judicially noticed, but are considered facts which must be pleaded and proved as any other facts. 20 Ency. PI. & Pr., pp. 598-601.
The laws of other States are universally regarded as facts, which, independently of statute, must be specially pleaded wherever the lex fori requires other facts under like circumstances to be pleaded. Minor on Conflict of Laws, sec. 212.
'The declaration in the case at bar sets forth with sufficient particularity section 59 of the North Carolina Code, which gives a right of action for the death of a person caused by the wrongful act, neglect or default of another. By this statute, as alleged, which is known as Lord Campbell’s Act, the action must be brought within one year. Nowhere in the statute, as alleged, is there a saving clause. This statute, limiting the time within which the action must be brought, has been construed by the Supreme Court of North Carolina, in the case of Taylor v. Cranberry Iron & Coal Co., 94 N. C., p. 525-6, where it is said: “This is not strictly a statute of limitation. It gives a right of action that would not otherwise exist, and the action to enforce it must be brought within one year after the death of the testator or intestate, else the right of action will be lost. It
The action in the case at bar not having been brought, as shown by the declaration, for more than fifteen years after the right accrued, the statute alleged and the decision mentioned construing it would seem to be conclusive that the plaintiff’s right of action was lost.
It is, however, insisted that the State of North Carolina has a statute which is very similar to section 2933 of the Virginia Code, under which it is claimed the limitation upon the right of action has been all the time suspended by reason of the uninterrupted absence of the defendant from the State of North Carolina since the grievance complained of was committed.
It is not necessary to decide whether or not the saving statute mentioned has any application to the case at bar, for the reason that no such statute has been alleged in the declaration, and therefore cannot be considered.
There is no error in the judgment complained of and it must be affirmed.
Affirmed.