#### MYRTLE HANIE, Administratrix, v. D. H. PENLAND, Sheriff, and JOE RICE.

(Filed 25 May, 1927.)

Actions — Wrongful Death — Jiegligence—Statutes—Conditions Annexed— Statute of Limitations.

The statutory requirement that action must be brought iu a year to recover damages on account of the wrongful killing of another is a condition annexed thereto, and need not be pleaded as a statute of limitation in defense; and where there is no evidence tending to show that the plaintiff has performed this condition, he may not maintain his action. C. S.. 160.

*801Civil action, tried before Schmclc, J., at November Term, 1926, of Buncombe.

Tbe plaintiff is tbe duly appointed administratrix of Garfield Hanie, her husband, who was killed by tbe defendant Joe Eiee on or about 7 April, 1924. Tbe plaintiff further alleged and offered evidence tending to show that Joe Eice was a special deputy of tbe defendant D. H. Pen-land, sheriff of Buncombe County; that on or about 6 April,. 1924, tbe said Joe Eice went to tbe office of B. L. Lyda, a justice of tbe peace of Asheville, and made an affidavit, upon oath, that one.............did unlawfully, etc., maintain and set up a gambling board, to wit, “a puncbboard, etc.” Thereupon, on 6 April, 1924, tbe said justice of tbe peace issued a warrant directed “to any constable or other lawful officer of Buncombe County, commanding tbe arrest of 'John Doe, alias.’ ” Thereafter, on 7 April, 1924, the said Joe Eice, special deputy, went to "Woodfin, on tbe Veaverville road, and saw a man who be was informed was tbe “puncbboard man.” This unidentified person got in bis car and started to move off. Eice jumped on tbe running board. Tbe occupant of tbe car either pushed Eiee off tbe car or Eice got off, and thereupon drew bis pistol and began to fire at tbe car. Garfield Hanie, plaintiff’s intestate, passed by tbe side of tbe car at that time and was shot by tbe defendant Eice and killed. It does not appear who tbe occupant of tbe ear was, or whether be was tbe “puncbboard” man or not. Garfield Hanie, plaintiff’s intestate, was an innocent bystander, and bad no connection whatever with tbe transaction. Tbe defendant Eice contended that the shooting of Hanie was an accident. However, be filed no answer, and judgment was taken against him by default. Tbe cause of action alleged by plaintiff against tbe defendant Penland is based upon tbe theory that tbe sheriff is responsible for tbe negligence of bis deputies.

Tbe ninth paragraph of tbe complaint is as follows: “That by reason of tbe negligence of tbe defendants in tbe manner and respect herein alleged, and as a proximate cause thereof, tbe plaintiff’s intestate was unlawfully and wrongfully killed by tbe defendants above named.”

At tbe conclusion of plaintiff’s evidence, there was judgment of non-suit, and tbe plaintiff appealed.

W. B. Qudger .and Zeb F. Curtis for plaintiff.

A. Hall Johnston for defendant Penland.

Brogden, J.

The cause of .action alleged in tbe complaint was for wrongful death of Garfield Hanie, plaintiff’s intestate, by virtue of tbe negligence of Joe Eice, a special deputy of defendant Penland, sheriff of Buncombe County.

*802. Tbe plaintiff offered in evidence tbe summons in tbe action, issued 8 March, 1926, and served on tbe defendants on 9 and 12 March, 1926. It further appears from tbe record that plaintiff’s intestate was killed on 7 April, 1924. It does not appear from tbe record that there was any evidence whatever offered tending to show that tbe suit for wrongful death of plaintiff’s, intestate was brought within a period of one year from the date of the accrual of the cause of action, to wit, 7 April, 1924. Indeed, the summons which was offered in evidence shows conclusively that the suit was not brought within one year after the cause of action accrued. C. S., 160, provides that an action for wrongful death must be “brought within one year after such death by the executor, administrator, or collector of decedent.”

In Bennett v. R. R., 159 N. C., 346, this Court held; “Under this statute, giving a cause of action on account of the wrongful killing of another, the provision that suit shall be brought within one year after death is a condition annexed, and must be proved by the plaintiff to make out a cause of action, and is not required to be pleaded as a statute of limitation.” Gulledge v. R. R., 147 N. C., 234; Gulledge v. R. R., 148 N. C., 567; Belch v. R. R., 176 N. C., 22; Reynolds v. Cotton Mills, 177 N. C., 412; Brick Co. v. Gentry, 191 N. C., 636.

The judgment of nonsuit is therefore correct, and is

Affirmed.