mill. The grist mill was below the saw mill and on the same stream, distant about a quarter of a mile. The design of the canal was that when tan bark was running in the canal the gate should be shut, thus carrying the tan water beyond the pond and saw mill; and that when no tan bark was running the gate should be open, thus returning to the pond of the saw mill the water of the stream. The plaintiffs claimed that while tan bark was running the gate (which was under defendants' control) was left open, thus filling up the saw mill pond, and that when no bark was running the gate was often shut, thus diminishing the water power of the mills. The rafting place was about a mile below the tannery and where the creek emptied into the Delaware River, and it was claimed that the tan bark carried down the stream had greatly decreased the depth of water at that point. All the owners of the tannery were not made defendants. It was shown that in former years to free the saw mill pond of tan bark the plaintiffs, at various times, had taken off the slash boards of the saw mill dam and had opened the waste-gate, and that the effect of these measures was greatly to diminish the filling up of the pond; but it appeared that in later years this had not been done, and defendants claimed that this was such contributory negligence on plaintiffs' part as to prevent a recovery. The referee found that defendants had many times discharged tan bark into the saw mill pond and that it was not a reasonable or necessary use of the stream to permit this refuse tan bark to float into the pond. Arthur More, for applts. A. Taylor, for respts. Held, That the judgment should be affirmed. By consent of parties the referee examined the premises. This being so we may say, upon defendants' point that upon the whole evidence plaintiffs are not entitled to recover, that if this point asks a review of the testimony, it is plain that we cannot tell what the referee saw on that examination. This practice is not objectionable, but it is a mode which must necessarily make the referee's report as to the facts within his observation practically conclusive. The action being for a tort it was not necessary to join all the wrongdoers. 59 How., 451. The referee has found as a fact that the use of the stream by defendants was not necessary or reasonable. Hence defendants cannot claim that the language of his conclusions of law, viz., that the defendants had no right to allow the tan bark to flow into the stream, shows that he held that any flow of tan bark made defendants liable. Defendants asked a witness this question: "What is the custom of the country in regard to discharging the spent tan into the stream below tanneries situated on streams similar to this creek?" The evidence was excluded, and properly. The question was whether the defendants' acts were a reasonable use of the stream. And that depended on the facts of Assessors have no right to add names to the assessment roll after the 1st of July. Where they do so on grievance day they act without authority. Where a tax is paid without a levy, duress, protest or dispute, the payment is volun-¦ tary and no action to recover it back or to recover damages for assessing to plaintiff a farm occupied by him can be maintained, even though his name was added to the roll on grievance day. Appeal from judgment of County! Court, affirming judgment of a justice's court in favor of defendants. Action against assessors to recover back the amount of an erro neous tax paid by plaintiff upon a farm which he occupied. Evidence was given, which was uncontradicted, tending to show that plaintiff's name was placed upon the assessment roll by defendants on the third Tuesday in August, commonly called grievance day. G. S. Baker and M. M. Burlison, for applt. Joseph I. Sayles, for respts. Held, That in doing so they acted without authority. It is adjudged that assessors have no right to add names to the assessment after the first day of July. 15 N. Y., 316; 49 id., 246; id., 322; 3 Lans., 484. It appeared, however, that after the warrant was placed in the collector's hands plaintiff handed the amount of his tax, $25, to his wife, who paid it to the collector, who received all but nineteen cents of the tax, and that subsequently plaintiff paid to the collector the nineteen cents which remained unpaid; that no levy was made and that there was no duress of person or property. Held, That the payment was a voluntary one and plaintiff cannot recover back money thus voluntarily paid by him. 2 Sandf., 479; 2 Kern., 116; id., 311; 33 Barb., 151; 2 Den., 26; 7 Hill, 159; 70 N. Y., 500. Bellinger v. Gray, 51 N. Y., 620, distinguished. There was no levy, no protest, no dispute, no duress, but a voluntary payment which stands in the way of any claim now made by plaintiff to recover back the mon ey, or damages for assessing to him a farm which he occupied at the time the assessment was made. Nor has there been any reversal of the assessment. Peyser v. The Mayor, 70 N. Y., 502; 5 W. Dig., 127, and Lott v. Sweezey, 29 Barb., 87, distinguished. This view renders it unnecessary to examine the question made as to one of the jurors, for if it was error to allow him to sit, we do not see how plaintiff was prejudiced thereby. 5 Barb., 283. Judgment affirmed. Opinion by Hardin, J.; Smith, P. J., and Haight, J., concur. a writ of habeas corpus and remanding the prisoner. The accused was indicted in the Albany Sessions for contempt, in failing to appear pursuant to a subpoena served in New York to testify in the Albany Oyer and Terminer. On petition of relator, Justice Donohue issued a writ of habeas corpus. It was ruled on the hearing that the prisoner was lawfully arrested, and not entitled to be let to bail, for the reason that the Court of Oyer and Terminer, in and for the County of Albany, was then in session, having jurisdiction to try the indictment. No order had been made by the Court of Sessions transferring the indictment to the Court of Oyer and Terminer for trial. H. E. Tremaine, for Relator. The People ex rel. Frank R. public resulting from the non-atSherwin v. Michael S. Mead. Decided Oct. 27, 1882. The relator was taken into custody by the respondent, in the City of New York, by virtue of a bench warrant issued by the District Attorney of Albany, directing his arrest upon an indictment for contempt of Court. Justice Donohue, on petition of relator, issued a writ of habeas corpus, which was subsequently dismissed, the Court of Oyer and Terminer for Albany being in session. Held, The Court of Oyer and Terminer being in session while the proceedings were pending, the Justice of the Supreme Court had no power to let the prisoner to bail. The Court of Oyer and Terminer in and for the County of Albany had jurisdiction to try the relator upon this indictment, without any order from the Court of Sessions, in which the indictment was found, sending the same to the Oyer and Terminer for trial. Appeal from an order dismissing tendance occurred in the County of Albany, and not in the City and County of New York, where the process was served upon him. The Court of Oyer and Terminer being in session while the proceedings were pending, the Justice of the Supreme Court had no power to let the prisoner to bail, for the reason that the statute limits his authority in express terms. 2 Rev. Stat., 728, $$ 56 and 57; 14 Hun, 90; 77 N. Y., 39, 40. The Court of Oyer and Terminer, in and for the County of Albany, had jurisdiction to try the relator upon this indictment without any order from the Court of Sessions, in which the indictment was found, sending the same to the Oyer and Terminer for trial. 2 Rev. St., 205, | the will of G. B., who died in 1832, Where a deed conveyed the farm and plantation given to J. and W. by the will of W. B.," followed by an exact description, Held, That land situate distinct from that described, and which is not shown to have been a who is the common source of the title claimed by both parties. It was adjudged on the trial that the premises in question were embraced in the deed from G. B. to D.,and passed by that deed to his grantee. It was conceded that if the premises in question are within the descriptive words of the grant, plaintiffs cannot maintain this action, and that if the Salt Meadow was not embraced in the premises specifically described, or did not pass as appurtenant thereto, that defendants are not in a position on this appeal to assert a prescriptive or other different title to the premises in controversy. The defendants prevailed in the action on the ground that the title to the Salt Meadow vested in D. under the G. B. deed. There was evidence bear part of the farm of W. B, or in his possession, would not pass under the genera! words, nor under the word "appurtenances," as land cannot pass as appurtenant to land. When the description in a deed designates a particular piece of land it cannot be departing upon the question whether deed from by parol evidence of intent, and declarations of the grantor are inadmissible to show that something else was intended to be conveyed. An allegation in a complaint to set aside the deed that the premises described comprised all the real estate of which the grantee was seized or entitled to is at most such a declaration. There is no presumption that facts inconsis tent with the judgment of a court or referee were found and considered by the trial fendants acquired title by adverse possession, but there are no findings of fact upon the subject, and the question was not, so far as it appears, raised upon the trial. J. T. Marean, for applts. E. B. Hinsdale and Thomas E. Pearsall, for respts. Held, That the question whether defendants have acquired a title by adverse possession cannot now be considered. The rule that an appellate court will presume, in support of a judgment on a trial before a court or referee, that material facts appearing in the case and not embraced in the express findings were found and considered by the trial court, applies only to such facts as, being found, would tend to support the special find ings. The rule is based upon the reasonable intendment that all supporting facts were considered by the trial court, and it would be a perversion to apply it to inconsis tent facts not conclusively established. 45 N. Y., 175. It was conceded that at the date of the deed from G. B. to D. the grantor owned a farm extending eastwardly from Gowanus Bay, and bounded northerly by land then or formerly owned by one H., and also certain wood lots lying separate from the farm, and that said farm and wood lots were part of the farm of W. B., who died in 1768, having devised the same to his sons J. and W. G. B. derived his title to that part of the farm and wood lots owned by him from his brother W., under a deed dated March 23, 1780, the description in which is identical with the deed from G. B. to D. The deed of 1780 describes the premises conveyed as one half of the "farm and plantation" given to J. and W. by the will of W. B., situate in the township of Brooklyn, bounded: "Northwest upon Gowanus Bay, southeast against the land of Jacob Bennet from Gow. anus Bay to the foot of the hill called Long Hill; northeast against the land of Cornelius Dyne, de ceased, and Anthony Holst, containing about 160 acres, more or less, as the same now lies in fence." And the following six lots of wood land (describing them), together with the appurtenances, &c. The salt meadow, as the evidence disclosed, and as is found, is a separate and distinct parcel of land, situated about 300 feet north of the northerly line of the clear land described in the deed. There was no evidence that the salt meadow was ever a part of the farm of W. B., or that he was in possession or had or claimed any title thereto. Held, That the salt meadow was necessarily excluded. It cannot be held to have passed under the general words "farm and plantation" of W. B., as these words are followed by an exact description of the land intended to be conveyed, and it was not proved that it ever was a part of that farm, or that W. B. was in possession of it or had or claimed title to the same. It did not pass under the word "appurtenances," as it did not appear to have been connected in title or use with the land described, and because land cannot pass as appurtenant to land. 62 N. Y., 526. The amplification of the description following the words "together with" does not enlarge the premises previously described, nor does the enumeration of particulars which were parcel of the thing granted tend to show that it was intended to include in the deed other lands than those described. |