him of producing proofs sufficient to support such charge; for it is not shown by the proofs that defendant either knew, or had any reason for knowing or believing, the herd was infected with the disease of tuberculosis at the time of its purchase by complainant, and it is not shown defendant represented any fact to exist which is shown to be untrue and of which he had no knowledge. Defendant did not seek complainant out as a prospective purchaser, but the initiative in the transaction was taken by complainant. Hence, if it be true, as stated from scientific authority on the subject, that the disease is one of general prevalence, and hence, of necessity, the herd in question, from the very nature of things, must have been infected to a greater or less extent, yet complainant, by reason of his special education and knowledge of the subject, and his ample opportunity for an actual inspection of the herd before his purchase, in the absence of any warranty of soundness, express or implied, must be held to have accepted the risk of the appearance or development of a latent disease, such as tuberculosis is shown to be by the proofs. From the entire record I am convinced, even if it might be said, taking scientific knowledge, and not the proofs as to this particular herd, as the basis, that the herd was infected to any extent with the disease of tuberculosis at the time of the trade, the defendant had neither knowledge nor means of knowledge of such fact, and he did not knowingly make a misrepresentation as to the soundness of the herd purchased.

However, it is urged by solicitors for complainant that, although the proofs may fail to show defendant knowingly made any false representations as to the soundness of the herd purchased for the purpose of inducing the sale, yet, this being a suit for rescission of contract. and cancellation of the writings made in consummation thereof, if the proofs show any such material statements were made by the defendant however innocently, and the herd was in fact infected with the disease of tuberculosis to such an extent as to render it unsuitable for the purpose for which it was sold by the defendant and purchased by complainant, then it would be inequitable to refuse the decree prayed; and many cases are cited in support of this contention. While, as has been seen, such is not the theory on which the bill presented was drawn, yet it is thought this fact alone would not warrant the refusal of the decree as prayed, if the proofs are sufficient, and the rule contended for is applicable to the circumstances of this case. The rule contended for was applied in Billings v. Aspen Mining & Smelting Co., 51 Fed. 346, 2 C. C. A. 252; Turner v. Ward, 154 U. S. 618, 14 Sup. Ct. 1179, 23 L. Ed. 391; Wheeler v. Smith et al., 9 How. 55, 13 L. Ed. 44; Smith v. Richards, 13 Pet. 26, 10 L. Ed. 42; McFerran v. Taylor, 3 Cranch, 279, 2 L. Ed. 436; Doggett v. Emerson et al., 3 Story, 700, Fed. Cas. No. 3,960; and many other cases.

In Billings v. Aspen Mining & Smelting Co., supra, it is said:

"It is, under the circumstances in this case, immaterial whether Devereux knew the falsity of these statements or not. Even though he then believed them to be true, yet as it now appears beyond doubt that these statements were without foundation, and that the Wood heirs held the title to one-third of the property, equity will not permit the grantee in the deed to enjoy the benefits thereof, when it appears that the grantor was induced through a total misapprehension of her right and title, which misapprehension was caused

by the representations of the grantee or his agents, even though such untrue representations were at the time made in good faith. In such case the inequity would exist, not in the making the representations originally, but in claiming the benefit thereof after discovery that the other party has been misled, to her injury, by relying on the statements made for the purpose of inducing action on her part, which now appear to have been wholly untrue."

Conceding, for the purpose of the argument, defendant in this case did make statements as to the herd being free of disease, as contended by complainant, and as positively denied by the defendant, yet it is apparent at a glance that the rule contended for has no application here. The rule stated is inconsistent with and does not apply to those transactions where the doctrine of "caveat emptor" is the. guide. The sale here made was of live stock, inspected by the buyer before his purchase. As has been seen, there was no warranty of fitness for the purpose for which the purchase was made, either express or implied. The disease which it is now contended infected the cows at the time was in its nature latent and of which the seller had no actual knowledge. The ability of the buyer to determine the existence of this latent disease by inspection, on account of his peculiar training, was equal to, if not greater than, that of the seller. In other words, complainant knew, in the making of the trade in question, under the circumstances in which it was made, the law of "caveat emptor" compelled him to be his own judge of the fitness of the herd. for the purpose of the business for which they were intended; that he could not rely on the superior judgment of the seller as to the existence or nonexistence of a latent defect, the actual existence of which was unknown to both. Therefore I am of the opinion, under the facts and circumstances in proof in this case, the rule contended for by the complainant is not applicable, even though it should be conceded the evidence shows the infection of the herd at the time purchased, which in my opinion it does not, except as it may be drawn from a scientific knowledge of the disease as applied to subsequent

events.

Again, it may be said the conduct of the complainant is so lacking in that fairness of dealing with the defendant in regard to the property in question, with respect to the disease with which he claims the herd was infected, the manner in which he sought to have tests made for the purpose of ascertaining if it was so infected, the manner of disposing of property on hand covered by the mortgage of defendant, and in abandoning his trade, that his supposed equities do not appeal strongly to the conscience of a chancellor.

For all these reasons, I am of the opinion that the complainant's case as made out from the proofs is without equity, and the prayer of his bill must be denied. It is so ordered.

ZEIGER v. PENNSYLVANIA R. CO.

(Circuit Court, W. D. Pennsylvania. March 6, 1907.)

1. COURTS-FEDERAL COURTS-AUTHORITY OF STATE DECISIONS CONSTRUING STATUTES.

A construction placed upon a state statute by the highest judicial tribunal of the state which has been adhered to without variation, and has become the settled law of the state is as binding on the federal courts as though it were written into the statute itself.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 13, Courts, § 957. State laws as rules of decision in federal courts, see note to Wilson v. Perrin, 11 C. C. A. 71, Hill v. Hite, 29 C. C. A. 553.]

2. DEATH-ACTION FOR WRONGFUL DEATH-RIGHT OF ACTION UNDER PENNSYLVANIA STATUTE.

Under the settled construction placed by the Supreme Court of Pennsylvania upon the act of 1851 giving a right of action for wrongful death, as amended by Act April 26, 1855 (P. L. 309), giving such right of recovery to the next of kin of the deceased, such statute does not confer a right of action on a nonresident alien.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Death, §§ 35, 37, 47.]

At Law. On demurrer to declaration,

Weil and Thorp, for plaintiff.

Patterson, Sterrett & Acheson, for defendant.

EWING, District Judge. The plaintiff is a citizen and resident of the city of Zenta, Kingdom of Hungary, and in this action seeks to recover damages by virtue of the provisions of the acts of 1851 and 1855 of this commonwealth, for the death of his son, George Zeiger, late a resident of Pittsburgh, Pa., which was occasioned by a collision while the said decedent was a passenger on a train of the defendant company en route from New York to Pittsburgh. The train in which the said George Zeiger was a passenger collided with another train of cars of the defendant company at or near Harrisburg, Pa., early on the morning of May 11, 1905, and in that collision the said George Zeiger was so badly injured that he died about 11 o'clock that morning in the Harrisburg Hospital where he had been taken. The said George Zeiger was unmarried, and the plaintiff is his sole living parent, and the only person entitled to recover under the acts aforesaid. The declaration also alleges that the decedent devoted a large part of his earnings to the support and maintenance of the plaintiff, and for years has been, and at the time of his death was, his sole support.

The defendant company has filed a demurrer and assigned in support thereof the following reasons: (1) That the plaintiff is and was at the time of the accident complained of a nonresident alien parent. (2) That plaintiff's son, George Zeiger, was at the time of the accident complained of, a resident of the state of Pennsylvania.

The case was argued on this demurrer, and the pivotal point is whether or not the plaintiff, being a nonresident alien, can maintain this action under the provisions of the statutes of this state above referred to and the decision thereon of the Supreme Court of this State in Deni v. Pennsylvania Railroad Company, 181 Pa. 525, 37 Atl

558, 59 Am. St. Rep. 676, and Maiorano v. Baltimore & Ohio Railroad Company (decided January 7, 1907) 216 Pa. 402, 65 Atl. 1077; the contention of the plaintiff being that, notwithstanding these decisions of the Supreme Court of this state, the courts of the United States are at liberty to determine the question for themselves, and are not concluded by those decisions. I have examined with great care the very extensive and excellent brief furnished by counsel for plaintiff, and feel constrained to hold that the decisions of the Supreme Court of this state upon the statutes aforesaid are binding and conclusive upon the courts of the United States. At common law, the plaintiff had no right of action, nor any one else, for the death of George Zeiger, and it is only by virtue of the purely local statutes aforesaid that any right of action is conferred. In construing those statutes the Supreme Court of this state in Deni v. Railroad Company, supra, after full deliberation and consideration has decided that: "Our statute was not intended to confer upon nonresident aliens rights of action not conceded to them or to us by their own country, or to put burdens on our own citizens to be discharged for their benefit. It has not extraterritorial force, and the plaintiff is not within the purview of it. While it is possible that the language of the statute may admit of a construction which would include nonresident allen husbands, widows, children, and parents of the deceased, it is a construction so obviously opposed to the spirit and policy of the statute that we cannot adopt it. A nonresident defendant is not entitled to the benefit of our exemption laws, although the language of these laws may admit of a construction which would include him. It has been so held in a number of our cases. In this connection the language of Mr. Justice Sterritt, in Collum's Appeal, 2 Penny. (Pa.) 130, is pertinent. In delivering the opinion of the court, he said: 'While nonresident debtors may perhaps be within the letter of the act we do not think they are within its spirit. As was sald by Mr. Justice Woodward in Yelverton v. Burton, 2 Casey (Pa.) 351, and afterwards quoted approvingly by the present Chief Justice in McCarthy's Appeal, 18 P. F. Smith, 217, we do not legislate for men beyond our jurisdiction.' In one respect at least, our act of 1885, resembles our exemption laws. It is intended, primarily, for the benefit of the family of which the deceased was a member. The act of 1851, gave a right of action to the personal representatives of the deceased. Mr. Justice Green referred to this act in Books v. Borough of Danville, 95 Pa. 158, and said: "The effect of this act was to make the damages recoverable in such actions general assets of the deceased in the hands of the personal representatives, and, of course, they were available to creditors in the first instance. It follows that in all cases of insolvent estates of such deceased persons, where the victim of the injury was the husband and father, the widow and children derived little or no advantage from the action, although they were the persons most directly and severely injured.' But this objection to the act of 1851 was overcome by the act of 1855, which designated the persons to receive the sum recovered, and directed that they should take it in the proportion they would take the personal estate of the deceased, in case of intestacy. 'and that without liability to creditors.' In Bacon v. Horne, 123 Pa. 452, 16 Atl. 794, 2 L. R. A. 355, it was held that the act of May 3, 1855 (P. L. 415), relating to the recording of an assignment, made for the benefit of creditors by a resident of another state, which assignment included property of the assignor in this state, was for the protection of our own citizens, and that a creditor of the assignor who was a resident of the state in which the assignment was made could derive no benefit or protection from the act, although he was without notice of the assignment. There is nothing on the face of the act which limits the protection afforded by it to our own citizens. It is referred to as another illustration of the general rule that we do not legislate for persons beyond our jurisdiction. We have a num

ber of statutes which expressly confer rights upon aliens, but none which confers them by implication or inference. When the Legislature intends to concede to nonresident aliens the rights which our own citizens have under and by virtue of the act of April 26, 1855 (P. L. 309), it will say so."

This case was decided May 27, 1897, and has been the settled law of this state ever since and is reaffirmed in the case of Maiorano v. Baltimore & Ohio R. R. Co., supra. It will be noted that in the opinion. of the court the decision is stated to be in line with the settled policy of this state, respecting legislation as affecting nonresident aliens, so that, since the first of the cases along that line cited in the opinion to the present time, it may be taken as settled that in the absence of some express provision to the contrary, or the character of the legislation. be such as to absolutely demand it, our statutes are to be construed as providing for and affecting only those in the territorial jurisdiction of the state.

The Thirty-fourth section of the judiciary act of 1789 declares that: "The laws of the several states, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in courts of the United States, in cases where they apply." Act Sept. 24, 1789, c. 20, 1 Stat. 92.

And this has been uniformly interpreted by the courts of the United States to apply to the positive statutes of the state and the construction thereof adopted by the local tribunals.

In Burgess v. Seligman, 107 U. S. 20, 2 Sup. Ct. 15, 27 L. Ed. 359, Mr. Justice Bradley, in delivering the opinion says:

"The federal courts have an independent jurisdiction in the administration of state laws, co-ordinate with, and not subordinate to, that of the state courts, and are bound to exercise their own judgment as to the meaning and effect of those laws. The existence of two co-ordinate jurisdictions in the same territory is peculiar, and the results would be anomalous and inconvenient but for the exercise of mutual respect and deference. Since the ordinary administration of the law is carried on by the state courts, it necessarily happens that by the course of their decisions certain rules are established which become rules of property and action in the state, and have all the effect of law, and which it would be wrong to disturb. This is especially true with regard to the law of real estate and the construction of state Constitutions and statutes. Such established rules are always regarded by the federal courts, no less than by the state courts themselves, as authoritative declarations of what the law is."

This appears to be a fair and full declaration of the attitude of the United States courts towards the decisions of the state courts and to be fully recognized and acted upon at this date. The cases cited by plaintiff's counsel as authority for his contention that this court is not concluded by the decisions of the Supreme Court of Pennsylvania on the statutes aforesaid are all easily distinguishable from this case and do not authorize this court to disregard those decisions of the

state court.

Burgess v. Seligman, supra; Carroll County v. Smith, 111 U. S. 556, 4 Sup. Ct. 539, 28 L. Ed. 517, and Stanley County v. Coler, 1901 U. S. 437, 23 Sup. Ct. 811, 47 L. Ed. 1126, are all cases where the question involved had either been decided by the United States courts prior to any decision by the state courts, or where the decisions of the United States courts were upon the very controversies upon which