false imprisonment. If the imprisonment is under legal process, but the action has been commenced and carried on maliciously and without probable cause, it is malicious prosecution. Id.; Elsee v. Smith, 2 Chit. 304; Nebenzahl v. Townsend, 10 Daly, 236; Brown v. Chadsey, 39 Barb. 260-263. In such an action the imprisonment cannot be false, for it is upon lawful process, and hence by lawful authority. False imprisonment, on the other hand, is a trespass committed against a person by unlawfully arresting and imprisoning without any legal authority. Id. ; 2 Add. Torts, 798; Bourden v. Alloway, 11 Mod. 180; Burns v. Erben, 40 N. Y. 463, Lock v. Ashton, 12 Q. B. 871. Thus the arrest of the right person by the wrong name, through a misnomer in the process, without an allegation that the true name is unknown, is false imprisonment. Hoye v. Bush, 1 Man. & G. 775; Scheer v. Keown, 29 Wis. 586.

Where in an action for false imprisonment the arrest and detention is admitted, and the only justification relied upon by a defendant having participated therein is that such arrest and detention were under a warrant issued by a magistrate, it must appear, in order to be available, that such warrant was void upon its face. West v. Smallwood, supra; Carratt v. Morley, supra; Grumon v. Raymond, 1 Conn. 40; Poulk v. Slocum, 3 Blackf. 421; Vaughn v. Congdon, E6 Vt. 111; Hoye v. Bush, 1 Man. & G. 775; Blythe v. Tompkins, 2 Abb. Pr. 468; Flack v. Harrington, 12 Am. Dec. 170; Gold v. Bissell, 1 Wend. 210; S. C., 19 Am. Dec. 480; Floyd v. State, 54 id. 250; Mitchell v. State, id. 253, and notes to cases; Smith v. Shaw, 12 Johns. 257; Miller v. Adams, 52 N. Y. 409; Abbott v. Booth, 51 Barb. 546; Harwood v. Siphers, 70 Me. 464; Gorton v. Frizzell, 20 Ill. 291; Sheldon v. Hill, 33 Mich. 171; Green v. Elgie, 5 Q. B. 99. There must not only be a jurisdiction of the subject-matter, but also a jurisdiction of the process. Grumon v. Raymond, supra; Vaughn v. Congdon, supra. A warrant absolutely void upon its face, as the one before us is conceded to be, is necessarily a nullity-mere waste paper- and hence, in an action of false imprisonment, can afford no protection to one participating in making an arrest under it.

The evidence tending to show that the defendant participated in making the arrest after the warrant was issued is weak, but we think it was sufficient to take the case to the jury. The judgment of the Circuit Court is reversed, and the cause is remanded for a new trial.

years of age," applies to persons holding the office of surrogate.

The important judicial functions exercised by surrogates may afford reason for applying to them a disqualification by age, similar to that prescribed with respect to judges and justices of the courts referred to in the Constitution.

But this question before us is not whether the disqualification should have been extended to those officers, or whether it should be deemed by analogy to apply to them, but whether by the terms of the Constitution they are included in it under the designation of persons holding the office of "judge or justice of any court."

For the purpose of determining this question it is necessary in the first place to consider the context in which the language quoted is used in section 13 of article 6, and also other provisions of article 6 of the Constitution, the whole of that article having been adopted by the vote of the people at the same time in 1869, as a separate article known as the judiciary article. Section 2 of article 6 establishes a Court of Appeals, to be composed of a chief judge and six associate judges, to be elected, and to hold office for the term of fourteen years. Section 6 provides for the continuance of the existing Supreme Court, to be composed of the justices then in office, with an additional justice to be elected.

Section 12 provides that the Superior Court of the city of New York shall be composed of six judges, and the Court of Common Pleas of the same city of three judges then in office and three additional judges; the Superior Court of Buffalo of the judges then in office and their successors, and the City Court of Brooklyn of such number of judges, not exceeding three, as may be provided by law.

Section 13 provides for the election of justices of the Supreme Court and of judges of all the other courts mentioned in section 12, and declares that the official terms of the said justices and judges who shall be elected after the adoption of the article shall be fourteen years, and then follows immediately in the same section the provision, "but no person shall hold the office of justice or judge of any court longer than until and including the last day of December next after he shall be seventy years of age." Section 14 next follows, providing that a compensation shall be established by law for the services of the judges and justices herein before mentioned, which shall not be diminished during their official terms.

It must be observed that up to this point no person has been designated in the Constitution as a judge or justice of any court except the judges of the Court of Appeals, the justices of the Supreme Court, and the judges of the Superior Court and Court of Common Pleas of the city of New York, of the Superior Court of the city of Buffalo, and of the City Court of Brooklyn.

That the limitation as to age was intended to apply to the judges and justices of those courts is too clear to be capable of misapprehension. The only other officer or body having judicial powers mentioned in the sections of article 6, preceding section 13, is the commission of appeals. That high tribunal had power under section 4 to hear and determine certain of the causes pending in the Court of Appeals, and by section 5 it was provided that the decisions of the commission should be entered and enforced as the judgments of the Court of Appeals. But the commission was not designated in the Constitution as a Court, nor the commissioners as judges, but as commissioners, and it was therefore assumed that the disqualification of age under section 13 did not apply to them, for it is a matter of history that one venerable commissioner

held his office without question for several years after he had passed the age of seventy, and in the case of Settle v. Van Evrea, 49 N. Y. 280, it was decided that section 27 of article 6, which prohibits any judge of the Court of Appeals from acting as referee, did not apply to a commissioner of appeals, because he was not a judge of the court.

All the provisions of article 6 of the Constitution bearing upon the question at issue, which precede sectious 13 and 14, have now been examined, and we next come to section 15, relating to County Courts. This section continues the existing County Courts, and provides that the judges thereof then in office shall hold their offices until the expiration of their respective terms, and that their successors shall be chosen by the electors of the counties for the term of six years. These judges come literally within the words of the Constitution, for they are judges of courts, designated as such by the Constitution. People, ex rel. Davis, v. Gardner, 45 N. Y. 812; People, ex rel. Joyce, v. Brundage, 78 id. 403. No judicial officer other than those who have been already named is in any part of the Constitution designated as a judge or justice of any

court.

Justices of the peace are mentioned in section 15, and they exercise judicial powers. Two justices of the peace, together with the county judge, compose Courts of Sessions, with such criminal jurisdiction as the Legislature shall prescribe, and such justice may also exercise jurisdiction to a limited extent in civil cases, and may hold courts for that purpose. At the same time they exercise other powers. They are in numerous sections of the Constitution designated, not as judges or justices of any court, but as justices of the peace, and are elected under that desiguation, and on these grounds it was decided in the late case of People v. Mann, 97 N. Y. 532, and they did not come within the disqualification by age contained in section 13 of article 6.

Surrogates are throughout all the provisions of article 6 designated as officers by that name, and not as judges or justices of any court. By section 15 of article 6 it is provided that the county judge shall also be surrogate of his county, but that in counties having a population exceeding forty thousand, the Legislature may provide for the election of a separate officer to be surrogate, whose term of office shall be the same as that of the county judge, which is six years. By section 16 the Legislature is empowered, on application of the board of supervisors, to provide for the election of local officers, not to exceed two in any county, to discharge the duties of county judge and of surrogate in cases of their inability or of a vacancy. In section 25 surrogates are coupled with justices of the peace and other local judicial officers. Section 27 refers to Surrogates' Courts, and for their relief authorizes the Legislature to confer upon courts of record in any county having a population exceeding four hundred thousand the powers and jurisdiction of surrogates. In no part of the Constitution are surrogates mentioned as judges or justices of any court, and at the time of the adoption of article 6 Surrogates' Courts were not even courts of record, they having been first declared to be such in the Code of 1880.

Reading the clause of section 13 which imposes the disqualification by reason of age, in connection with all the other provisions referred to, it seems to us mere reasonable to suppose that the people who voted for the adoption of article 6 understood the disqualification as applying to persons who in the Constitution itself were in express terms designated as judges or justices of courts, and were popularly known as such, and elected by those designations, than to assume that the voters so minutely analyzed the nature of the

functions of officers elected under other names as to discover that some of their duties were of a judicial character, and that therefore they might, though not named as such, be construed to be judges. In interpreting constitutions regard must be paid to the popular sense in which words are generally used. People, ex rel Sharkey.v. Goodwin,50 Barb. 562; Commonwealth v. Dallas, 4 Dall. 229; Gibbons v. Ogden, 9 Wheat. 188; Settle v. Van Evrea, 49 N. Y. 280.

The constitutional provision in question is quite clear and intelligible as applicable to persons popularly known as judges or justices of courts, and named as such in the Constitution itself, but we think it would be unwarrantable to extend it by construction to every officer exercising judicial powers, though not commonly known as a judge or justice of a court, but elected by a different title. The Legislature of 1870, which immediately followed the adoption by the people of the judiciary article - article 6-clearly indicated its understanding of the disqualification in accordance with the views above expressed. The act of 1870, ch. 86, was passed for the purpose of carrying into effect the provisions of the judiciary article, and section 8 of that act required all the judges and justices of the courts named in article 6, viz.: the judges of the Court of Appeals, the justices of the Supreme Court, the judges of the Court of Common Pleas and of the Superior Courts of the cities of New York and Buffalo, and of the City Court of Brooklyn, and judges of County Courts, to file in the office of the secretary of State a certificate of their age, for the purpose undoubtedly of showing whether they would be disqualified by age from holding their offices before the expiration of the term for which they were elected. It will be observed that there was no provision requiring surrogates or justices of peace to file any such certificate, clearly indicating that in the judgment of the Legislature the disqualification did not apply to those officers. This legislative action, so closely following the adoption of the constitutional provision, is entitled to great consideration by the court in construing the provision. Marshall, C. J., in Cohens v. Virginia, 6 Wheat. 420; Marcy, J., in People v. Green, 2 Wend. 274; Church, C. J., in People, ex rel. Joyce, v. Brundage, 78 N. Y. 403.

Our conclusion is that the office of surrogate of Westchester county will not become vacant on the 31st of December next by reason of the present incumbent, Surrogate Coffin, having attained the age of seventy years in July last, and that the secretary of State was right in refusing to give notice of the election of a successor.

The orders of the Special and General Terms should therefore be reversed, and a motion for mandumus denied, with costs.

All concur.

NEW YORK COURT OF APPEALS ABSTRACT.

FORMER ADJUDICATION-FORECLOSURE DISCONTINUED-ACTION ON BOND-DEFENSE OF FAILURE OF CON

SIDERATION. -If a suit be discontinued at any stage of the proceedings in the action the adjudication therein concludes no one, and it is not an estoppel in any sense. Big. Estop. 21; Freem. Judg. (3d ed.), § 333; Leonard v. Barker, 5 Denio, 220; Audubon v. Excelsior Fire Ins. Co., 27 N. Y. 216. The defendant W. took a deed, incumbered by a mortgage, which he assumed and agreed to pay. In an action to foreclose said mortgage he appeared therein, answered and defended the same on the merits. The plaintiff recovered the usual foreclosure judgment, by which it was also adjudged that the mortgagor and Willis were

both liable for any deficiency which should remain after applying the proceeds of the real estate upon the mortgage. A prior mortgage had been forelosed, which cut off plaintiff's mortgage. Plaintiff, before proceeding to sell under his judgment, moved for leave to discontinue his foreclosure action and to allow him to bring suit on the bond, which motion was granted, and this action commenced. Plaintiff alleged in his complaint in the action all the proceedings had in the former action, and claimed that the liability of W. to pay the bond and mortgage had been already adjudged therein. W. denied that there was any adjudication binding upon him, and alleged in his answer and offered to prove certain facts tending to show a total failure of consideration for his agree ment to assume the mortgage in question. The trial court ruled as a matter of law that W. was estopped by the former adjudication, and the evidence was excluded. Held error; that if the facts alleged in his answer were true, he was entitled to prove them, and that after the ruling was made he was under no obligation to offer any evidence. Loeb v. Willis. Opinion by Earl, J.

[Decided Oct. 27, 1885.]

FORECLOSURE-LEASEHOLD ESTATE-DISTRIBUTION OF SURPLUS MONEYS.-The value of a leasehold estate is what it is worth over and above the rents reserved; and in the absence of any evidence of such value no foundation exists for an award to the lessee out of the surplus moneys coming to the lessor as owner of the equity of redemption. In the absence of proof to the contrary, the rents reserved must be presumed to be the fair annual value of the use of the land, and that the fee is worth more than the incumbrances, as shown by a foreclosure sale, does not destroy that presumption. Clarkson v. Skidmore, 46 N. Y. 301. Larkin v. Misland. Opinions by Finch, J.

[Decided Oct. 27, 1885.]

TAXATION-LUNATICS' ESTATE-WHERE ASSESSED.— The relator, by an order of the Supreme Court entered in Madison county, was appointed committee of the estate of one Smith, a lunatic, who resided in that county. The relator lived in the city of New York, and its board of tax commissioners assessed to him "as committee" the personal estate of the lunatic. Upon certiorari the court at special term vacated the assessment on the ground that the estate was not in possession of the relator, or under his control as "agent, trustee, guardian, executor or administrator," within the meaning of the statute, infra. Upon appeal to the General Term the decision was reversed. There was no question that the property was liable to taxation, but the contention of the relator is that it should have been assessed against the lunatic at his place of residence. This depends upon the statute which prescribes the place in which property is to be assessed. The general provision under the Revised Statutes, vol. 1, tit. 2, p. 1, ch. 13, art. 1, § 5, as amended in 1851, L. 1851, ch. 176, § 2, so far as it relates to this case, is that “every person shall be assessed in the town or ward where he resides when the assessment is made, for all personal estate owned by him, including all personal estate in his possession or under his control as agent, trustee, executor or administrator, and in no case shall property so held under either of these trusts be assessed against any other person." The relator cannot be regarded as agent," for that designation, as we have already held, only applies to one whose principal is a non-resident of the State. Boardman v. Supervisors, etc., 85 N. Y. 359. It is obvious that he is neither executor nor administrator, nor is he assessed as such, nor as trustee or guardian. Strictly then the statute has not been followed. It says: "When a person is assessed as trustee, guardian, executor or

administrator, he shall be assessed as such, with the addition to his name of his representative character." Nor is the style or title by which the relator is described convertible with the statutory appellations. The office of committee is as well defined and specifically referred to in law and in the statutes as that of guardian,executor or administrator. Each person filling either may be said to perform the functions of a trustee; and had the Legislature intended by that general word to embrace all persons who might be so described it is difficult to see why they selected specific terms by which particular characters are indicated, unless they intended to exclude others, nor why the word "trustee" was coupled with them unless it was to be taken in a technical sense and limited in its application to such persons as might by express appointment fill the office and by virtue of it hold the legal title to property as trustee under some trust authorized by statute. A different construction would deprive the prohibition of the statute, supra, of any force. It declares that "in no case shall property so held under either of these trusts be assessed against any other person.' They are words of limitation, and include only such persons as are invested with a delegated power under one or the other of the terms referred to. Such is not the case with the relator. A trust is no doubt discharged by a committee of the estate of a lunatic, but the trust is in the court and the committee acts under its appointment as agent, officer or bailiff. Through him the court must preserve the property intrusted to it and therewith maintain the lunatic and his family. But the lunatic is not divested of his estate or property rights, and the legal title thereto remains as before. Nothing has been taken from him but its control and management (Beverly's case, Coke Rep., part 4, page 123; Lane & Gross v. Schermerhorn, 1 Hill, 97; McKillip v. McKillip, 8 Barb. 552; Code Civ. Proc., ch. 17, tit. 6), and it is only by statute that certain actions, even in respect thereto can be brought in any name save his. L. 1845, ch. 112. In a general sense and for certain purposes an "agent" is a trustee; yet it was deemed necessary to bring such a representative within the statute by amendment. The duties of attorney or factor would permit the same interpretation, and by the Code regulating procedure in actions any one with whom a contract is made for the benefit of another is to be deemed a trustee of an express trust, and permitted to sue without joining with him the person for whose benefit the action was prosecuted (§ 449); but it cannot be supposed that such a person would be embraced within the statute which lies at the foundation of this proceeding. Something more than a trust reposed in one is required to make him a “trustee" according to its intent. So is it with the "com. mittee" of a lunatic. He executes an important trust, but it is by virtue of a mere authority without any interest. It would seem to follow that the relator, as "committee," could not be liable to assessment upon the property held by him in that capacity, but that it should be assessed to the lunatic, its owner, in the place where he resides. 1 Rev. Stat., tit. 2, part 1, ch. 13, art. 1, § 5. People, ex rel. Smith, v. Com'rs of N. Y. Opinion by Danforth, J. [Decided Oct. 27, 1885.]

PENNSYLVANIA SUPREME COURT ABSTRACT.

EASEMENT GRANT OF WATER PRIVILEGE-COVENANT RUNNING WITH LAND-RENT.--A., the owner of land on which there was a spring, granted to a railroad company the perpetual right to take water therefrom by laying a pipe to the spring, over his own land and

[Decided Oct. 5, 1885.]

EASEMENT-WATER RIGHT-ADVERSE USE.-In 1842 riparian owners erected a dam across a creek and cut a sluice therefrom for purposes of irrigation, and commenced and continued openly diverting the waters from the natural channel of the stream by means of the sluice; in the summer of 1862, the supply of water in the creek being lessened, the effect of drawing away the water at the dam became perceptible on the lower stream, and each succeeding summer it became more so, eventually it materially interfered with the operating of mills along the lower stream which depended upon the flow of water for a motor; in 1881 an injunction was prayed for by the mill-owners to restrain the upper riparian owners from so using the waters of the creek. Held, that as the upper riparian owners had openly and notoriously exercised the right of irrigation by means of the dam and sluice for forty years without making changes in either dam or sluice, and without applying the water to a different use, and that as the complaining mill-owners below could foresee and anticipate the ultimate effect of the diversion of the water as well as the riparian owners causing it, the law presumed at the expiration of twenty-one years a grant of the easement to the upper riparian owners, equal to a right by prescription. It is held in Strickler v. Todd, 10 S. & R. 63, to be well settled law if there has been an uninterrupted and exclusive en joyment for more than twenty-one years of water in any particular way it affords a conclusive presumption of right in the party so enjoying it, equal to a right by prescription. The same rule is substantially declared in Hoy v. Sterrett, 2 Watts, 327; Darlington v. Painter, 7 Penn. St. 473; Wheatley v. Chrisman, 24 id. 303. The law presumes a grant of the easement, the extent of which is measured not by the actual or average depth of the water at any given point, but by the nature and extent of the obstruction itself. Gehman v. Erdman, 15 W. N. C. 278. When one uses an easement whenever he sees fit, without asking leave or without objection, the use is adverse; and an adverse enjoyment for twenty-one years gives an indisputable title to the enjoyment. Garrett v. Jackson, 20 Penn. St. 331. The work on the ground was not only under a claim of right but it was open, visible and notorious. The parties who owned the property below could foresee and anticipate the ultimate effect of the diversion of the water as well as the parties who caused it. The fact that they may not have foreseen the probable diminution of the quantity of water which would flow in the stream cannot deprive the appellees of any of their rights arising from their possession and enjoyment of the water for nearly twice the number of years necessary to give a right thereto by prescription. Messinger v. Uhler. Opinion by Mercur, C. J. [Decided Oct. 5, 1885.]

WILL-TRUST FUND — CONVEYANCE OF LEGATEE'S INTEREST.-A testator by his will left $20,000 to a trustee, to invest the same and pay over the income to A. during her life; and further provided that in the event of her death, without leaving children or issue of deceased children, the said sum "shall become part of my residuary estate, and be disposed of as I shall herein and hereby direct." By the fourth clause of the will, testator then devised and bequeathed to his sons B., C. and D., theirs heirs, executors, adminisshares, "all the rest and residue of (his) estate, both trators and assigns, as tenants in common, in equal real and personal." The executors paid the $20,000 to the trustee, and as a compromise of certain litigation which followed as to the rest of the estate, B., for the and D., by two separate deeds, all the real and perconsideration of $15,000, conveyed to his brothers C. sonal estate to which he was entitled under the fourth clause of his father's will, and at the same time executed a release to them as executors. The deed for the personal property recited the fourth clause of the will, and granted in general terms all the personal estate to which B. was then entitled "under the above recited last will and testament as one of the heirs of his father." Held, that said deeds conveyed every including his share in the trust fund, although said possible interest which B. had in his father's estate, fund did not fall into the residuum for about twenty years after the execution of the deeds and release. [Decided Oct. 5, 1885.] Wickersham's Appeal. Opinion by Gordon, J.

-PERSONALTY

STRACT.