specially concurring: In my
judgment, the amendment to section 39 of the Practice Act, Cahill’s St. ch. 110, ft 39, has no application to the question before us. That section, in so far as it bears on the pleadings of a plaintiff, applies to a situation where the amended declaration asserts a cause of action substantially the same as it was set up in the original declaration, “even though the original pleading was defective in that it fails to allege the performance of some act or the existence of some fact, or some other matter or matters, which are necessary conditions precedent to the right of recovery . . . when such conditions precedent have been in fact performed.” The purpose of the statute was to permit a defect in a declaration, that pertained to conditions precedent, to be cured in an amended declaration, even after the stat- , ute had run. The failure to allege, in the original declaration in the instant case, that the deceased left him surviving next of kin, was not a mere failure to allege a necessary condition precedent to the right of recovery. The statute, in my judgment, was intended to apply to cases similar or analogous to Erford v. City of Peoria, 229 Ill. 546, and Walters v. City of Ottawa, 240 Ill. 259, wherein the Supreme Court held that the notice required by section 2 of the Act of 1905, “concerning suits at law for personal injuries and against cities, villages and towns,” was a condition precedent to the right of recovery. To adopt the interpretation of the statute contended for by the plaintiff would clearly require a holding that the legislature intended to take away a vested right from a -defendant. However, if the interpretation of the statute for which I contend be the correct one, in view of the opinion in Walters v. City of Ottawa, supra, such a statutory provision would doubtless also deprive a defendant of a vested right. The judgment, in any view, should be reversed.