leged to have been obtained upon false and the revisory power over their adju dications in the appellate courts. But that such jurisdiction may be vested in the State Courts of Equity by statute, is there recognized, and that when so vested the Federal courts, sitting in the States where such statutes exist, will also entertain concurrent jurisdiction in a case between proper parties. and insufficient testimony. There are no separate Equity Courts in Louisiana, and suits for special relief, of the nature here sought, are not there designated suits in equity. But they are none the less essentially such suits; and if by the law obtaining in the State, customary or statutory, they can be 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. The reason lies in the nature of the Nor is there anything in the decisions 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 of 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 whenobtained. 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 the Federal courts should not take juof statutes, a bill will not lie to set aside risdiction of the case than there is that a will or its probate; and whatever the they should not take jurisdiction of any cause of the establishment of this doc- other controversy between the parties. trine 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 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 defend- 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. 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. Held, That the grant from Brown N. Y. SUPREME COURT. GEN'L TERM. of the right to divert the water, not Decided June, 1876. reservoir, it was the right of the A party having, for a valuable consid- The plaintiff, although he sold the 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. for the extra amount of water taken by 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 Whether others than defendant could use water from the tank, quære. Non-suit set aside. PARTNERSHIP. ACCOUNTING. John McCall, respt. v' Henry Heditch, applt. 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. 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. ceived and disbursed the money, but kept the books in so careless a manner that an account cannot be stated from them. This action was brought to recover The referee to whom the issues were the price of certain goods alleged to referred stated an account, wherein he have been sold by plaintiffs to defendfinds that the defendant is indebted to ant. It was proved that H., defendplaintiff' in the sum of $1,313.92. That ant's brother, had, for several years the defendant kept the books and re- 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 Held, That from the evidence sub-due for goods furnished the store. mitted it cannot be assumed that the This claim and the costs of the proaccount of the referee is not correct. ceedings were paid by the defendant in From this data, thus furnished, and from the evidence of the partners themselves, the referee has stated an account. Opinion by Mullin, P. J.; Smith and Noxon, JJ., concurring. D. C. Hyde, for respt. PRINCIPAL AND AGENT. Decided June 6, 1876. It is the duty of a principal, when he Judgment of General Term, affirming judgment on verdict for defendant, reversed and new trial ordered. Opinion by Rapallo, J. LEASE. FRAUD. FOURTH DEPARTMENT. Fraud in executing lease will vitiate it although party injured had friends present who could read and who could examine lease. 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 only 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 concluded that the circumstances were N. Y. SUPREME COURT. GEN. TERM. such, independently of notice, that in fair dealing plaintiffs should have inquired of defendant at Great Bend whether he continued the store at Meadville, and whether H. was authorized to buy goods in his name, that would preclude a recovery, and further that if the jury concluded that no notice in fact was given, and that the circumstances were such as to put plain-privilege of five if he did not sell it. tiffs fairly upon inquiry as to whether Plaintiff, after this, went to defendthat business was continued by defendant's house with two friends, and the ant, and H. was authorized to make the lease was read over by defendant and purchases, that ended defendant's re- executed. Plaintiff after this carried sponsibility. 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. That defendant offered to let plaintiff read it but he replied he could not read, Plaintiff, by parol, agreed to lease of defendant a farm for one year, with A. J. Vanderpoel, for applts. 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 un disputed 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. Also held, That the circumstances existing at the time of the sale of the but it was not offered to the others pres ent. This action was brought for damages for the fraud. Plaintiff got judgment before the Justice, it was reversed in County Court, and appealed here. 0. & E. C. Olney, for applt. Geo. W. Daggett, for respt. Held, That this was a clear case of fraud, and the evidence should have been submitted to the jury in the county court. Defendant knew that the contract of the lease did not contain the provisions which he read as being contained therein, and as he represented were contained in it. He knew plain The summons was served upon the tenants and undertenant by leaving a true copy thereof at their place of business, No. 109 Washington Street, with a person of mature age, whose name the deponent was not able to ascertain, and who at the time of the service, was tiff could not read, and that he relied on and employed on the premises, the tenants and undertenant being at the time absent from the said place of busines. on his (plaintiff's) reading of it, and it is no answer to this charge of fraud that he might have had the friends who were with him read it to him. This is not a case where a party is not allowed to rely on the representations of the other party. Judginent reversed. Opinion by Mullin, P. J. Certiorari to the respondent, a Justice of the third District Court in the City of New York, to review summary proceedings by which the tenants W. & W. and the undertenant Charles Mordaunt were removed from the premises No. 109 Washington Street, New York City, by a warrant issued by the aforesaid justice. SUMMARY PROCEEDINGS. The People, ex rel. Charles Mordaunt E. H. Benn, for relator. Geo. W. Niles, landlord, and counsel in person. Held, This service was entirely insufficient under the act of 1868 (Laws 1868, Chap. 828). To make the service of a summons upon a person employed on the premises valid within the law governing the subject, it is necessary to prove : 1. That the tenant could not be found, so that personal service could be made. In summary proceedings to remove ten- mons. 2. That he was absent from his place of residence. 3. That no person of mature age resided at his place of residence. 4. Or that his place of residence was not in the city. 5. That no one resided on the de 6. That the tenant could not be found on the demised premises. 7. That the person on whom it was served was not merely employed on the |
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