But

leged to have been obtained upon false and the revisory power over their adju and insufficient testimony. There are dications in the appellate courts. no separate Equity Courts in Louisiana, that such jurisdiction may be vested in and suits for special relief, of the na- the State Courts of Equity by statute, ture here sought, are not there desig- is there recognized, and that when so nated suits in equity. But they are vested the Federal courts, sitting in the none the less essentially such suits; and States where such statutes exist, will if by the law obtaining in the State, also entertain concurrent jurisdiction in customary or statutory, they can be a case between proper parties. maintained in a State court, whatever designation that court may bear, we think they may be maintained by original process in a Federal court, where the parties are on the one side citizens of Louisiana, and on the other citizens of other States.

There are, it is true, in several decisions of this court, expressions of opinion that the Federal courts have no probate jurisdiction, referring particularly to the establishment of wills, and such is undoubtedly the case under the existing legislation of Congress. Nor is there anything in the decisions The reason lies in the nature of the of this court in the case of Gaines v. proceeding to probate a will as one in New Orleans, reported in the 6th of rem, which does not necessarily involve Wallace, or in the case of Broderick's any controversy between parties; inwill, reported in the 21st of Wallace, deed, in the majority of instances no which militate against these views. In such controversy exists. In its initiaGaines v. New Orleans this court only tion all persons are cited to appear, held that the probate could not be col- whether of the State where the will is laterally attacked, and that until re- offered or of other States. From its voked it was conclusive of the exist- nature and from the want of parties, or ence of the will and its contents. the fact that all the world are parties, There is no intimation given that a di- the proceeding is not within the desigrect action to annul the will and re-nation of cases at law or in equity bestrain a decree admitting it to probate tween parties o different States, of might not be maintained in a Federal which the Federal courts have concuras well as in a State court, if jurisdic- rent jurisdiction with the State courts tion of the parties was once rightfully under the judiciary act. But when

obtained. ever a controversy in a suit between In the case of Broderick's will, the such parties arises respecting the validdoctrine is approved, which is estab-ity or construction of a will, or the enlished both in England and in this forcement of a decree admitting it to country, that by the general jurisdic- probate, there is no more reason why tion of Courts of Equity, independent of statutes, a bill will not lie to set aside a will or its probate; and whatever the cause of the establishment of this doctrine originally, there is ample reason for its maintenance in this country, from the full jurisdiction over the subject of wills vested in the probate courts

the Federal courts should not take jurisdiction of the case than there is that they should not take jurisdiction of any other controversy between the parties.

But, as already observed, it is sufficient for the disposition of this case that the statute of 1867, in authorizing a transfer of the cause to the Federal

court, does, in our judgment, by that valuable consideration, gave to detendfact, invest that court with all needed ant the privilege and right to run pipes jurisdiction to adjudicate finally and over and through his land to conduct settle the controversy involved. the water from such reservoir to defendant's water tank. The pipes were laid, the reservoir was built and used for some years. The pipes as first laid did not use all the water of the brook

It follows from the views thus expressed that the judgment of the Supreme Court of Louisiana must be re versed, with directions to reverse the judgment of the Parish Court of Orleans, and to direct a transfer of the cause from that court to the Circuit Court of the United States, pursuant to the application of the appellant; and it is so ordered.

Opinion by Field, J.; Waite, C. J., and Bradley and Swayne, J. J., dissenting.

WATER COURSES. DEED.

ESTOPPEL.

In 1871, the defendant relaid the pipes and put down larger ones, which used up all the water of the brook in dry seasons. It was also shown that persons other than defendant were in the habit of using the water from ¿ efendant's tank.

Plaintiff was non suited.

H. C. Kingsbury, for applt.
Lanning & Willets, for respt.

Held, That the grant from Brown

N. Y. SUPREME COURT. GEN'L TERM. of the right to divert the water, not

FOURTH DEPARTMENT.

limiting the amount of water in any

Outhank, applt., v. The L. S. & M. way the grantee might take from the

S. R. R. Co., respt.

Decided June, 1876.

reservoir, it was the right of the grantee to take whatever quantity it deemed necessary for its use. When, however, the grantee constructed a res

A party having, for a valuable consideration, given another the right to run pipes over his land for the pur-ervoir and put down certain sized pipes pose of conveying the water of a it thereby ascertained and limited the brook, is estopped from questioning quantity it was entitled to take by such other's right to such water. virtue of the grant. But where a party lays certain sized pipes and uses them for some time, he cannot replace them by larger ones without being liable for damages for excess of water taken.

The plaintiff, although he sold the right to lay the pipes through his land, knowing the purpose for which they were to be used, was entitled to the water left after defendants got their

This action was brought for damages for conversion of water and tres-supply, and he was entitled to damages pass, &c.

Plaintiff is owner of certain lands over which runs a small brook.

The land above him is owned by one B.

In 1863, B sold to defendant the right to erect on his land a certain reservoir, and to draw and use the water of such brook. Plaintiff also, for a

for the extra amount of water taken by
the new and larger pipes.

Whether others than defendant could
use water from the tank, quære.
Non-suit set aside.
Opinion by Mullin, P. J.

PARTNERSHIP. ACCOUNTING.
N. Y. SUPREME COURT. GENERAL TERM,
FOURTH DEPARTMENT.

John McCall, respt. v' Henry Heditch, applt.

Decided April, 1876.

In an accounting between partners it is competent to show by witnesses do ing the same kind of business as the partners, the amount of business done by such partners and the profits arising therefrom, as against one of the partners who kept the books of the partnership in so careless a manner that a proper accounting cannot be had from them.

The parties were partners in trade in the business of butchering. The partership being dissolved, this action was commenced to obtain an accounting and the appointment of a receiver.

Opinion by Mullin, P. J.; Smith and Noxon, JJ., concurring.

PRINCIPAL AND AGENT.
N. Y. COURT OF APPEALS.
Claflin et al., applts., v. Lenheim,
respt.

Decided June 6, 1876.

It is the duty of a principal, when he terminates the agency, to notify all parties who have been in the habit of dealing with the agent.

The fact that dealings between the parties had been suspended for two years, and that on resuming them the principal dealt directly with the parties, is not sufficient to constitute constructive notice of the revocation of the agency.

This action was brought to recover the price of certain goods alleged to have been sold by plaintiffs to defendant. It was proved that H., defend

The referee to whom the issues were referred stated an account, wherein he finds that the defendant is indebted to plaintiff in the sum of $1,313.92. That ant's brother, had, for several years the defendant kept the books and received and disbursed the money, but kept the books in so careless a manner that an account cannot be stated from them.

Butchers doing business in the same city, who were occasionally in the shop of the partners, were examined as to the amount of business done by them as compared with that done by the copartnership, and the profits per pound on the various kinds of meat purchased and sold.

From this data, thus furnished, and from the evidence of the partners themselves, the referee has stated an account.

D. C. Hyde, for respt. E. Webster, for applt. Held, That from the evidence submitted it cannot be assumed that the account of the referee is not correct.

prior to July, 1867, conducted a store at Meadville, Pa., in the name of de fendant, and had been in the habit of purchasing goods of plaintiff for that store. These purchases were made in the name and on the credit of the defendant and the bills rendered to and Defendant conceded paid by him. that previous to a fire in that store in July, 1867, H. was authorized to purchase goods in his name, but that a ter the fire he terminated such authority. The purchases for which this action was brought were made by H., for the Meadville store, in November and December, 1869, in the name of defendant. After the store was burned, plaintiffs sued defendant and issued an attachment against him for a bill then due for goods furnished the store. This claim and the costs of the proceedings were paid by the defendant in

August, 1867, and defendant thereafter goods were not sufficient to constitute suspended all dealings with plaintiffs constructive notice of the revocation of until October, 1869, when he resumed the agency, and that the case should them and made purchases for a store have been submitted to the jury on'y he kept at Great Bend, Pa. Defend- upon the quest ion of notice in fact, that ant gave evidence tending to show it was defendant's duty when he termiactual notice to plaintiffs of the revoca- nated the agency of H. to notify all tion of the agency of H. after the fire parties who had been in the habit of in July, 1867. They conceded that dealing with him as agent. they had notice of the fire, but the evidence of notice of revocation of the agency was controverted. The court submitted to the jury the question whether plaintiffs had notice of the revocation, but charged that if the jury

Judgment of General Term, affirming judgment on verdict for defendant, reversed and new trial ordered. Opinion by Rapallo, J.

LEASE.

FRAUD.

concluded that the circumstances were N. Y. SUPREME COURT. GEN. TERM.

such, independently of notice, that in
fair dealing plaintiffs should have in-
quired of defendant at Great Bend
whether he continued the store at
Meadville, and whether H. was author-
ized to buy goods in his name, that
would preclude a recovery, and further
that if the jury concluded that no no-
tice in fact was given, and that the cir-
cumstances were such as to put plain-privilege of five if he did not sell it.

FOURTH DEPARTMENT.
Edick, applt. v. Dake, respt.

Decided June, 1876.

Fraud in executing lease will vitiate it

tiffs fairly upon inquiry as to whether
that business was continued by defend-
ant, and H. was authorized to make the
purchases, that ended defendant's re-
sponsibility.

A. J. Vanderpoel, for applts.
A. G. Rice, for respt.

although party injured had friends present who could read and who could examine lease.

Plaintiff, by parol, agreed to lease of defendant a farm for one year, with

Plaintiff, after this, went to defendant's house with two friends, and the lease was read over by defendant and executed. Plaintiff after this carried on to the farm some of his property. Defendant soon after sold the farm and plaintiff was told he could not have the farm. On examining the lease plaintiff found that it contained a clause that the lease was for five years, reserving to defendant the right to sell the farm, or any portion of it, at any time, by al.owing plaintiff to harvest the crop he may have planted. Plaintiff proved by two witnesses, who were present when the lease was executed, that defendant read the lease over but read it as parol agreement was, and not as it really was. Also held, That the circumstances That defendant offered to let plaintiff existing at the time of the sale of the read it but he replied he could not read,

Held, That the court properly submitted to the jury the question whether plaintiff's had notice of the revocation of the agency, but that the question whether circumstances which were undisputed were sufficient to put a party on inquiry and thus charge him with constructive notice was not for the jury, but for the court. 24 N Y., 550; 17 Pick, 91; 29 N. Y., 220.

And where an objection to the regularity of the service is made prelimi-mised premises. narily, which is overruled and exception taken, by subsequently offering evidence the tenants do not waive the defect in the service of the sum