4. When land is taken for the uses
of a street or avenue, such build-
ings and parts of buildings as are
within the lines of the proposed
improvement pass, by force of the
statute and the proceedings taken
under it, to the public authorities,
with the land taken; the owners be-
ing thereby divested of their title,
which is resumed by the public;
while the residue of such buildings,
or parts thereof beyond and out-
side of such lines remain to the
owners, with the land upon which
they stand, the title thereto being

4. The proceeding by the creditors is
in hostility to the administrators,
and the latter will not be allowed to
allege their own neglect, to render
it inoperative. Per MORGAN, J. ib

5. The jurisdiction of the surrogate
depends upon the petition, and not
upon matters outside of it. It is not
competent in an action of ejectment,
by the heirs, against a purchaser
under the sale, to prove in opposition
to the statement of the petition, that
no account had been rendered by
the administrators showing a defi-
ciency of assets to pay the debts. ib

1. The act of the legislature relative
to the taxation of moneyed corpora-
tions and associations, passed April
29, 1863, should be construed as
though it read " All banks, &c. shall
be liable to taxation on a valuation
of their capital stock, equal to the
amount of their capital stock paid
in, or secured to be paid in," &c.;
that is, on the amount of their capi-
tal stock paid in, or secured to be
paid in. People, ex rel. The Bank of
Commerce, v. Commissioners of Taxes,
334

2. The legislature, by that act, intend-
ed to return to the principle of the
revised statutes as to taxing corpo-
rations, which was, of taxing them
to an amount, or for a sum equal to
the amount of their capital stock

paid in and secured to be paid in,
without regard to its actual value
or investment.

3. Accordingly held that a bank was
properly assessed on the whole
amount of its capital stock, after de-
ducting therefrom a certain amount
for the cost of its real estate, and
stock held by literary and charitable
institutions; although the affidavit
of the cashier was produced to the
commissioners, stating that the bank
then held and owned, and held and
owned on the 12th day of January,
1863, stocks, bonds, and other securities
of the United States, to an amount
exceeding its entire capital; and
that the total value of all its other
personal estate did not exceed the
amount of debts due from the
bank.
ib

4.

The notice required by the 19th
section of the act prescribing the
manner in which assessments of tax-
es are to be made, (1 R. S. 393,) to
be given by the assessors, of the
completion of the assessment roll,
and the opportunity thus afforded
to tax-payers of having errors in the
roll corrected, is essential to the
validity of the tax; it being one of
the things to be done by the assess-
ors to obtain jurisdiction over the
subject. Wheeler v. Mills, 644

5. Where it appeared that notices
were posted only five days before
the time specified therein for the
review of the roll, instead of the
twenty days specified in the statute;
Held that the assessment was unau-
thorized and void, and that a sale
of land for an unpaid tax conferred
no title upon the purchaser.

TENANTS IN COMMON.

ib

1. Where one tenant in common of
real estate takes from his co-tenant
a lease of the premises held in com-
mon, for a term of years, and after
the expiration of the term continues
in possession, without any new ex-
press agreement between the parties,
or any claim by him to be exclu-
sively entitled to the possession, or
any act done to prevent a joint oc-
cupation by his co-tenant, the latter
cannot recover of him for the use
and occupation of the premises, af-

2. The statute allowing an action of
account, or for money had and re-
ceived, to be maintained by one
joint tenant or tenant in common,
against his co-tenant, for receiving
more than his full proportion, ap-
plies to cases where rent, or pay-
ment in money, or in kind, is received
from a third party by one co-tenant,
who retains for his own use the
whole, or more than his proportional
share; and not to a case where one
tenant in common solely occupies
the land, and farms it at his own
cost and takes the produce for his
own benefit.
ib

3. A tenant in common of real estate
who takes a lease of his co-tenant's
moiety, for a term, subject to a
specified rent, and continues in pos-
session of the premises after the
expiration of his term, will not be
considered as holding over under the
lease, and thus liable to an action
for use and occupation; the pre-
sumption of law being that he is in
possession under his own title. And
such presumption will prevail, un-

less there be evidence that he holds
as tenant to his co-tenant.

TOWNS.

ib

1. The power to subscribe for rail road
stock, or to issue bonds for the pur-
chase of such stock, or the payment
of subscriptions therefor, is not one
of the general powers possessed by
towns. Before any such acts can
be done by the officers of a town,
or any commissioner in its name,
the power must be conferred by act
of the legislature. Town of Du-
anesburgh v. Jenkins,
574

2. The legislature may grant such
power; which may be either general
or special. And the legislature, in
granting it, may impose as many

conditions, limitations and restric-
tions as it shall deem proper. ib

3. Where the power, given by the
legislature to a town to subscribe
for stock in a rail road company
and to issue its bonds therefor, was
on condition, 1. That twelve or
more freeholders, residents of the
town, should apply to the county |

judge for the appointment of com-
missioners; 2. That the consent in
writing of a majority in number and
amount of the resident tax-payers
of said town to such subscription
and issuing of bonds, designating
the amount, should be first obtained;
Held that such application and con-
sent were pre-requisites or condi-
tions precedent to the authority of
the town to take stock and issue
bonds; and that such authority, be-
ing in excess of the ordinary and
general powers of towns, no juris-
diction could be acquired without
complying with the conditions im-
posed.
ib

5. Where a statute authorizing a town
to subscribe for rail road stock de-
clared that it should be lawful for
the commissioner to act, provided
the consent in writing of a majority
of the tax-payers appearing upon
the last assessment roll should first be
obtained. Held that the term "the
last assessment roll," as used in the
statute, and in an amendment there-
to, referred not to the passage of
the acts, but to the time of the sub-
scription for stock by the town, and
the intent was that if a majority of
the then property owners of the
town were willing to have their es-
tates incumbered for such purpose,
and said so in writing, the commis-
sioner might incur the debt.

6.

7.

ib

If bonds are issued by a town with-
out the consents required by the
statute having been obtained, they
are void, at least in the hands of the
rail road company to whom they
are issued, if not in the hands of
ib
every subsequent holder.

Requisites of the affidavits proving

that the written assent of the re-
quisite number of resident tax-pay-
ers, to a town subscription for rail
road stock, has been obtained. ib

TRESPASS.

1. Where, in an action for trespass on
land, the plaintiff proves title in

2. The defendant, under pretense that
he wanted the plaintiff to do his
threshing, induced him to move his
threshing machine into the defend-
ant's barn. He then claimed the
wheels upon which it was trans-
ported, but which belonged to a
wagon that the plaintiff had bor-
rowed for the season, to use with
the machine. The jury having
found against his right to detain
the wheels; held that he was guilty
of a conversion of the machine, as
well as of the wheels. MULLIN, J.
dissented.
ib

USE AND OCCUPATION.
See TENANTS IN COMMON.

USURY.

See MORTGAGE, 1, 2.

V

VENDOR AND PURCHASER.

1. Of chattels.

1. The defendants sent their agent, B.,
to the plaintiff, with a written order