(concurring). My concurrence is based wholly upon the interpretation of the Supreme Court of Illinois of section 18, chapter 110, and of the statute of limitations of that state, as applicable to causes of aetion brought under that section. A case involving the identical question here in issue was quite recently decided by the Illinois Supreme Court wherein that court said:
“The allegations in regard to any assignment by the Allis-Chalmers Company to the plaintiff do not appear in the original declaration, and no attempt to comply with this section of the Practice Act'was made until the filing of the amended declaration on December 2, 1919, six years after the expiration of the period of limitation for bringing suits against the city for damages by reason of the vacation of the street. A declaration in a suit by an assignee of a chose in aetion does not state a cause of aetion in favor of the plaintiff unless it contains the allegations required by section 18, showing the assignment of the chose in aetion, the actual ownership thereof by him and setting forth how and when he acquired title. A declaration which fails to allege a fact without whose existence the plaintiff is not entitled to recover does not state a cause of aetion. Walters v. City of Ottawa, 240 Ill. 259 [88 N. E. 651]; Prouty v. City of Chicago, 250 Ill. 222 [95 N. E. 147]. The plea of the statute of limitations, therefore, presented a complete bar to the plaintiff’s action. The amendment to the declaration was not a substitution of a proper party plaintiff for one in whose name the aetion had been improperly begun, but was the statement of a different cause of aetion in favor of the plaintiff by whom the suit was originally begun, based upon a different and contradictory state of facts.” Allis-Chalmers Mfg. Co. v. City of Chicago, 297 Ill. 444, 130 N. E. 736, cited in Gallagher v. Schmidt et al., 313 Ill. 40, 144 N. E. 319.
If this interpretation be here applied, I see no escape from affirmance, however otherwise my inclination would be without the Illinois interpretation. There is here no element of a subsequently stated cause of aetion accruing under federal statutes such as the Employers’ Liability Act, as was present in some of the reported federal eases. In my judgment the applicable statutes of that state and their interpretation by its Supreme Court must here control. See Nederland Life Ins. Co., Ltd., v. Hall, 84 F. 278, 27 C. C. A. 390.