at that time in the neighborhood.

We cannot say that the court erred in regarding this as an insufficient basis on which to found an opinion of this witness as to the reasonable value of the services of the ward per month. Another witness, who, about 1878 or 1880, as he passed along the road, had seen the ward hoeing corn in the adjoining field, and who also had seen the ward perform some farm work a number of years before that time, was not permitted to state his opinion as to the reasonable worth, per month, of the services of the ward as a farm hand. The court

might, with reason, regard this witness as not having shown himself qualified to give an opinion which would materially aid in estimating the value of the services actually rendered by the ward during the period for which an allowance was made for such services. The court announced that evidence of the value of the ward's services would not be excluded, and the testimony of a number of witnesses for the appellant furnished evi dence on which the court based its finding on this matter. The appellant was not materially injured by any of these exclusions of evidence.

Complaint is made of the refusal of the court to permit the appellant to ask certain of his witnesses whether or not the ward was a man of industrious habits, and what his habits were in the matter of work. The question before the court to which it was intended to direct this offered evidence related to the amount and value of services rendered by the ward. The objections to these rulings were not saved according to the rules laid down by the supreme court, the offers of proof being too late. Hoover v. Patton (Ind. Sup. No. 19,835, decided May 21, 1902) 64 N. E. 10. The general characterization as an industrious man of one suing on a quantum meruit for the value of his work and labor, by witnesses who were to base their opinion to that effect upon their occasional observation, would not have materially aided the court trying the cause, where the quantity and character of the service rendered and the time employed therein were to regulate the amount of recovery. If such opinion evidence was admissible, the court had grounds on which to conclude, in the exercise of its reasonable discretion, that the witnesses were not qualified sufficiently to express such opinions at the time of the trial. The court had the aid of much evidence of facts on which to base a conclusion as to the compensation for the ward's services, and we can find no sufficient ground for interfering with its conclusion because of its rejection of these opinions of witnesses formed on longpast, casual observations.

The appellant called the ward "as a witness on behalf of the defendant," and caused him to be sworn as a witness, the appellee objecting for the reason that the ward was a person of unsound mind. After the witness, answering counsel for the appellant, had stat

ed his name, appellant asked him who were his brothers. The court sustained the appellee's objection to this question, and thereupon counsel for appellant offered to prove in answer to this question that the ward had five brothers, and proposed to propound other questions, not stated to the court, for the purpose, as announced, of enabling the court to judge of the character of his intelligence, his powers of memory, his reasoning faculties, his knowledge as to farm work and of any kind of work about which testimony had been given in the case. This offer having been rejected by the court, the appellant asked leave to propound to the witness preliminary questions for the purpose of enabling the court to determine, and with a view to asking the court to determine, whether the witness was, in the judgment of the court, at that time, a competent witness, for the purpose, if the court should determine that he was competent, of making the ward a witness in the case for the appellant; and the appellant offered to show by the answers of the witness, if leave were given to propound such questions, that the witness was then competent to testify as a witness in the cause. This proposal also was rejected by the court. There are technical reasons on which this court may decline to interfere with the action of the court as to both of these offers of the appellant. Before the first offer the witness was asked to state who were his brothers, and the objection of the appellee to this question was sustained by the court before the appellant's offer of proof was made and the statement of appellant's purpose was announced. As to the second offer, no question after that above mentioned appears to have been propounded to the witness, and the court cannot be said to have ruled out any question asked for the latter purpose. It had been proved that the witness had been adjudged to be a person of unsound mind, and incapable of managing his own estate, and had been placed under guardianship, and was still under guardianship. Our statute (section 505, Burns' Rev. St. 1901) provides: "The following persons shall not be competent witnesses: First, persons insane at the time they are offered as witnesses, whether they have been so adjudged or not." The general rule, where the matter is not regulated by statute, is "that a lunatic or a person affected with insanity is admissible as a witness if he have sufficient understanding to apprehend the obligation of an oath, and be capable of giving a correct account of the matters which he has seen or heard in reference to the question at issue; and whether he have that understanding is a question to be determined by the court, upon examination of the party himself and any competent witnesses who can speak to the nature and extent of his insanity." District of Columbia v. Arms, 107 U. S. 519, 2 Sup. Ct. 840, 27 L. Ed. 618. In Breedlove v. Bundy, 96 Ind. 319, where a party was

introduced as a witness in his own behalf, and the opposing party objected on the ground of the insanity of the witness, it was held that the record, made nine years before, by two justices of the peace, for his committal to a hospital for the insane, was not alone sufficient to exclude the witness. It was said: "This is not like a case where a lunatic has been regularly adjudged insane by an inquisition and placed under guardianship, after which the presumption of insanity continues until he has been regularly adjudged sane and discharged from his guardianship." In Hull v. Louth, 109 Ind. 315, 10 N. E. 270, 58 Am. Rep. 405, the court, speaking of an offer to examine as a witness Emma J. Taylor, said: "The court did not err in refusing to allow appellant to examine Emma J. as a witness. She had been adjudged to be insane, and was under guardianship. Her condition was no better at the time of the trial. Such persons are not competent witnesses. Rev. St. 1881, § 497." In 1 Greenl. Ev. § 556, it is said concerning inquisitions: "The general rule in regard to these documents is that they are admissible in evidence, but that they are not conclusive except against the parties immediately concerned and their privies. So it has

been repeatedly held that inquisitions of lunacy may be read, but they are not generally conclusive against persons not actually parties." The granting of letters of guardianship of a lunatic has been held not conclusive against his subsequent capacity to make a will, but prima facie evidence of incapacity. 2 Greenl. Ev. § 690; Stone v. Damon, 12 Mass. 488; Harrison v. Bishop, 131 Ind. 161, 30 N. E. 1069, 31 Am. St. Rep. 422. In Hoyt v. Adee, 3 Lans. 173, it was held that an inquisition finding a person to be a lunatic, being analogous to proceedings in rem, is, as against persons not parties or privies, prima facie evidence of his insanity and consequent incapacity, upon objection made to him as a witness on the ground of lunacy, and is not conclusive evidence except against the parties immediately concerned and their privies. If the offered witness is insane, his mental infirmity does not merely affect his credibility, but renders him incompetent, under our statute. The witness cannot be rejected upon objection that he is insane without proof of that fact. The inquisition by which he was placed and continues under guardianship is evidence, being analogous to an adjudication in rem. The words, "whether they have been so adjudicated or not," in our statute relating to the incompetency of persons as witnesses, refer to the adjudication in a proceeding to establish unsound mind and procure an appointment of a guardian. Section 2714 et seq., Burns' Rev. St. 1901. If there has been no such investigation and adjudication, and the person offered be then found by the court to be insane, he is incompetent. The case before us did not involve such a question, or the

mode of procedure for its determination. The person for whom a guardian is appoint ed in a statutory inquisition for such purpose is already adjudged to be an insane person within the meaning of the statute concerning witnesses. Whatever may be the proper course in cases not such as that now before us, it would seem reasonable to say that a party to the action, having his standing therein solely as the guardian of an insane person, could not be heard on the trial thereof to claim that his ward was not then incompetent to testify as a witness because he was not then insane.

The conclusions of law stated upon the facts specially found seem to be sustained by the decision of the supreme court on the former appeal, holding the complaint sufficient. Judgment affirmed.

(197 I. 117)

FRANKLIN LIFE INS. CO. v. HICKSON. (Supreme Court of Illinois. June 19, 1902.) CORPORATIONS CONSOLIDATION - ACTIONS AGAINST-EFFECT-AMENDMENTS - APPEARANCE-PROCESS-WAIVER OF DEFECTS-AP

PEAL.

1. Where, in an action on a life policy, the trial court held defendant's proposition that the furnishing of proofs of death was a condition precedent to the action, but found as a fact that such proofs had been furnished, no question in regard thereto could be raised on appeal.

2. Hurd's Rev. St. 1899, p. 444, c. 32, par. 56, provides that the consolidation of one corporation with another shall not affect suits pending in which such corporation or corporations shall be parties, nor shall such changes affect causes of action, nor the rights of persons in any particular. Paragraph 65 prescribes that when any company or corporation shall consolidate with any other company or companies the consolidated company shall be liable for all the debts and liabilities of each company included in the consolidated company, and actions may be brought therefor against such consolidated company. Prac. Act, par. 24, allows amendments in a civil suit any time before judgment. introducing any necessary party, discontinuing as to any joint plaintiff or joint defendant, and in any matter, either of form or substance, in any process, pleading, or proceeding, which may enable the plaintiff to sustain the action for the claim for which it was intended to be brought. A life insurance company consolidated with another company under a new name after an action had been begun against it on a policy within a year after the insured's death, as was required by the policy, the consolidation taking place after the expiration of the year. Thereafter the pleadings were amended making the consolidated company the defendant, and the action as to the company issuing the policy was dismissed. Held, that under the above statutes the amendments were properly allowed, and the action was not abated against defendant in not having been brought within a year after the death of the insured.

3. Where a defendant, after its motion to quash the service of summons had been overruled, filed a demurrer and plea to the declaration, an appearance was entered, and all defects of process and its service were waived.

Appeal from appellate court, Fourth district.

Action by Rosa Hickson against the Frank

lin Life Insurance Company. From a judgment of the appellate court (97 Ill. App. 387) affirming a judgment in favor of the plaintiff, the defendant appeals. Affirmed.

Alfred Orendorff and Kramer, Creighton & Schaeffer, for appellant. A. R. Taylor and Freels & Joyce, for appellee.

CARTER, J. This appeal was taken from a judgment of the appellate court affirming a judgment of the city court of East St. Louis against appellant on a policy of life insurance issued by the Franklin Life Association of Springfield, Ill., to John Hickson, payable to his wife, Rosa Hickson, the appellee. Within one year after the death of Hickson, and after the making of proofs of death, suit was brought on the policy in said city court, and successive writs of summons were issued to the sheriff of St. Clair county during the next two or more years for service upon the defendant, but were returned "Not found." In the meantime the said Franklin Life Association and the People's Life Insurance Company had consolidated and formed the appellant company, the Franklin Life Insurance Company. At the August term, 1900, of said city court, the plaintiff, by leave of court, amended her declaration by making the appellant company a party defendant, and summons was issued to the sheriff of Sangamon county for service upon said company and also upon the Franklin Life Association. The summons was served upon one Roseberry, as the secretary of each of the two companies, and at the next term the Franklin Life Association filed its plea in abatement, averring that Roseberry was not its secretary or agent, and the appellant, the Franklin Life Insurance Company, moved to quash the service upon the ground that said city court had no authority to send its process of summons to Sangamon county for service there. The plaintiff then dismissed as to the Franklin Life Association, and the court overruled the motion of the Franklin Life Insurance Company to quash, whereupon the latter company moved the court to dismiss the suit as to it. This motion being also overruled, the plaintiff, by leave of court, filed a secondly amended declaration against the appellant company, alleging, among other things, its formation by the consolidation of its constituent members after the cause of action sued on had accrued. To this amended declaration the appellant company demurred, and upon the overruling of its demurrer pleaded: First, the general issue; and, second, that the suit was not brought within one year after the death of the insured, as required by the policy. Upon the issues made on these pleas there was a trial by the court, trial by jury having been waived, and a finding and judgment for the plaintiff.

By the judgment of the appellate court all controverted questions of fact have been settled in favor of appellee. One of such facts,

which has been reargued in this court, is whether proofs of death were made and sent or delivered to the company. Upon this question the court held, as requested by the appellant company, the following proposition: "That the furnishing of satisfactory proofs of death of the insured is a condition precedent to the right to bring and maintain an action on the policy of insurance herein sued upon, and it devolves upon the plaintiff to prove by a preponderance of the evidence that such proofs were furnished to the Franklin Life Association, one of the constituent corporations, before this suit was begun.” The trial court having found, as a question of fact, that such proofs were furnished, and having held appellant's proposition as submitted to be law in the decision of the case, no further question on that point can be raised by appellant here.

The appellant submitted certain propositions on the trial, to be held as law by the court, tending to the conclusion that, although the suit was brought within the year against the life association, one of the appellant's constituent companies, yet, inasmuch as by the conceded facts it was not brought against appellant within one year after the death of the insured, no recovery could be had against it on the policy; the argument being that, as the plaintiff had amended her declaration, and made appellant a party, and then dismissed as to the life association, the suit became a new one as to appellant, and, as the insured had been dead more than one year, judgment on the second plea should have been for defendant. Paragraph 56 of chapter 32, concerning corporations and their consolidation (Hurd's Rev. St. 1899, p. 444), provides, among other things, that the "consolidation of one corporation with another, shall not affect suits pending in which such corporation or corporations shall be parties, nor shall such changes affect causes of action, nor the rights of persons in any particular; nor shall suits brought against such corporation by its former name be abated for that cause." Paragraph 65 of said chapter 32 provides: "In all cases when any company or corporation, chartered or organized under the laws of this state, shall consolidate its property, stock or franchises with any other company or companies, such consolidated company shall be liable for all debts or liabilities of each company included in said consolidated company, existing or accrued prior to such consolidation; and actions may be brought and maintained, and recovery had therefor, against such consolidated company." Paragraph 24 of the practice act, allowing amendments, provides: "At any time before final judgment in a civil suit, amendments may be allowed on such terms as are just and reasonable, introducing any party necessary to be joined as plaintiff or defendant, discontinuing as to any joint plaintiff or joint defendant, changing the form of the action, and in any matter, either of form or substance, in any pro

the land, and the timber and improvements on it, and allege that they were induced to buy by these false and fraudulent representations. Appellees further allege that they have already paid $3,300 in land and $400 in money, and that this is more than the land deeded to them is worth, and that the notes are without consideration, and the mortgage is a cloud upon the title. The answer to this cross bill denies these allegations. Replications were filed, and these are the issues in the case. The chancellor found that appellees owed appellant $12.40 for taxes paid by him, and ordered that sum to be paid by them to him, and in default that the land be sold. Upon all other issues the findings were against appellant, and as to these issues the original bill was ordered dismissed. Upon the allegations of the cross bill, specific findings of fact were made sustaining its allegations, and the notes and mortgage specified in the original bill were decreed to be null and void, and that they should remain in the files of the case. All costs were taxed against the complainant, except $5, which were taxed against defendants." Upon appeal to the appellate court the decree of the circuit court was affirmed, and the present appeal is from such judgment of affirmance.

T. E. Ford and Van Hoorebeke & Louden, for appellant. Andrew L. Chezem and M. P. Murray, for appellees.

MAGRUDER, C. J. (after stating the facts). 1. This case was heard by the chancellor below in open court upon documentary evidence introduced, and upon the oral testimony of the witnesses,--some 30 in number. The specific facts, found by the trial court in its decree, are substantially as follows: The appellees, defendants in the original bill and complainants in the cross bill, who, at the time of the transactions herein narrated, were young persons,-J. H. Henn, 22 years of age, and Mae Henn, his wife, 23 years of age, -and were conducting a dry goods, hardware, and grocery store at Charleston, in Coles county, were the owners in July, 1899, of an interest in a house and lot in Charleston worth $1,000, and of a stock of goods in said building worth $800, and of a lease of 160 acres of land in Nebraska. At the same time the appellant, C. J. Allen, was the owner of 290 acres of land in Clinton county. On July 22, 1899, Henn and Allen made an agreement, by the terms of which the said property of Henn and his wife should be conveyed and transferred to Allen in exchange for the 200 acres owned by him; and, in addition to said property, Henn was to pay to Allen for said land $3,300,-$600 on January 1, 1900, $900 on January 1, 1901, $900 on January 1, 1902, and $900 on January 1, 1903. Henn executed his notes for these amounts, aggregating $3,300, bearing interest at the rate of 7 per cent. after maturity; and Allen and his

wife delivered to Henn a bond for a deed of said 290 acres, conditioned that, upon the payment of said notes, Allen would make a deed thereof to Henn. The notes and bond for a deed bear date July 22, 1899. The exchange was made, and the property of Henn and his wife and the notes in question were delivered to Allen, and his bond for a deed was delivered to Henn. Afterwards, on November 27, 1899, the notes were surrendered by Allen to Henn, and Henn and his wife paid to Allen $400 in cash, leaving $2,900 of the $3,300 still unpaid. To secure said last-named amount of $2,900, Henn and his wife executed to Allen the notes and mortgage upon the 290 acres sought to be foreclosed by the original bill filed in this cause; the notes and mortgage being for part of the purchase money of the 290 acres. At the same time Allen executed and delivered to Henn a deed of the 290 acres. The contract so made between Allen and Henn was induced by the wrongful and fraudulent representations of Allen, made to Henn and his wife. The representations so made by Allen were to the effect that the tract of 290 acres was first-class, high, dry, river-bottom land, not subject to overflow; that it had not been overflowed within 10 years; that it was covered by very valuable saw timber, which had never been culled, consisting of hickory, white oak, burr oak, ash, sycamore, and other varieties of timber; that it was all virgin forest, except 40 acres, which 40 acres Allen wrongfully and fraudulently represented to be in a high state of cultivation; that the entire tract of 290 acres was worth and would sell for $27 per acre in cash; and that the timber thereon could be readily sold to meet the payment of all of said notes as they matured. The decree also finds that Henn and his wife were young, of the age of 22 and 23 years, respectively, and without experience, and were ignorant of the value of the lands in question, and of the quality or value of the timber; that they informed Allen that they were ignorant thereof, and would depend and rely upon his statements as to the value of the land. The court further finds that Henn and his wife did so rely upon the statements of Allen, and were deceived thereby, and induced thereby to give in exchange their property above described, and Henn's notes for $3,300, and to accept from Allen his bond for a deed. The court further finds in its decree that the 200 acres did not exceed in value the sum of $5 per acre, including the timber thereon; that the timber thereon was of the value of about $100; that the land was low and wet; that the amount of clearing thereon did not exceed 6 acres; that, before the giving and execution of the notes and mortgage sued on, Henn and his wife had paid to Allen for the 290 acres property of the value of $1,800, and $400 in cash; that Henn and his wife, after the execution of the notes and mortgage sued on, committed no waste, nor suffered any to be committed, upon the land; that the build