(after stating the facts as above). The Supreme Court of Connecticut has construed the statute regarding the written notice required to be given to the defendant within four months after the neglect of which the plaintiff complains, in Bulkley v. Norwich Railway Co., 81 Conn. 284, 70 Atl. 1021, 129 Am. St. Rep. 212. The court, in overruling the demurrer to a complaint which contained no allegation that the notice had been served, says:

“Ail action may be maintained against this defendant upon the facts set up in tills complaint. A written notice is not prerequisite. Section 1180 simply places a limitation, analogous to the general statute of limitations, upon the right of an injured party to prosecute such an action without further proceedings. This limitation is to be regarded as creating a condition subsequent, by which an existing right is cut oft by the nonperformance of the condition, rather than a condition precedent to a continuing right. Such being its essential character, a defense indicated upon it, as upon conditions subsequent and limitations generally, need not be anticipated and negatived by the plaintiff, but may properly be left to be pleaded by the defendant.”

The decision is by the highest court of Connecticut interpreting a statute of that state and is conclusive as to the meaning of the statute. It must be followed by the Circuit Court and by this court. As was said by Mr. Justice Swayne in Leffingwell v. Warren, 67 U. S. 599, 17 L. Ed. 261:

“The construction given to a statute of a state, by the highest judicial tribunal of such state, is regarded as a part of the statute, and is as binding upon the courts of the United States as the text.” Morley v, Lake Shore R. Co., 146 U. S. 162, 13 Sup. Ct. 54, 36 L. Ed. 925; Provident institution v. Massachusetts, 6 Wall. 611, 18 L. Ed. 907.

The Bulkley Case decides that it is unnecessary for the plaintiff in a negligence cause to allege a compliance with the statute. Consequently it is unnecessary for the plaintiff to prove it. If the plaintiff in the Bulkley Case had proved the allegations of his complaint, which contained no allusion to the notice required by section 3130, he would have been entitled to recover. The notice is not a prerequisite to the maintenance of the suit but a condition subsequent. The plaintiff’s right to sue is not destroyed by a failure to give the notice unless the defendant alleges and proves it as a defense. If the defendant makes no mention of it in his pleading, the presumption is clear that lie does not intend to reply upon it. We think the Circuit Court was correct in holding that it was incumbent upon the defendant to prove that this notice was not given.

After this ruling the defendant assumed this burden. It called William E. Barnett, a lawyer, who testified that on February. L, 1906, and until four months thereafter, he was the claim attorney of the defendant and that in the ordinary course of business all papers relating to an accident received by the railroad company would be referred to the claim attorney where the files are kept. He was asked:

*764“Q. Did you ever receive any notice of an intention to sue in the case of Raffaelo Spinello against the New York, New Haven & Hartford Railroad Company? A. No, sir.

“Q. If such a paper had been served, in the regular course of business it would have come to you, would it? A. In the regular course of business all papers received there would be referred to me relating to this accident. I heárd of this accident and I investigated it.” '

The difficulty with this testimony is that it may have been entirely true and still the notice required by the statute may have been refceived by the secretary or other “agent or executive officer of the company in fault.” It may even have been received by the witness himself. The notice required by law is not a notice of “an intention to sue,” but a notice, containing a general description of the injury and of the time and place of its occurrence. It is not required to state .the intention of the sender, but it must give certain data which will enable the railroad company to investigate and pay the damages if it sees fit to do so. It is suggested that this is an exceedingly technical criticism. This is true, but it must be remembered that we are dealing with an exceedingly technical defense, in meeting which the plaintiff is justified in holding the defendant to the strictest proof, especially so where it appears that the claim attorney of the company had actual knowledge of the accident and had investigated it and therefore was in possession of all the information which the written notice could have given him.

The testimony upon the main issue has not been returned, but it must be assumed that the plaintiff would, or might, have recovered a verdict had the cause been permitted to go to .the jury. Where, in such circumstances, the defendant relies upon a defense based upon the failure to give it notice of facts which concededly were already within its knowledge, we think the proof should be clear and explicit and that the present proof is neither clear nor explicit.

The judgment is reversed.