litigant, and also what interest he has exhibited in the prosecution or defense, and what part he has taken, if any, as affecting his credibility before the jury. After a careful consideration of all the errors assigned, we do not find any that calls for a reversal of the judgment, and it is affirmed. We think this a case that calls for the assessment of damages for vexatious appeal, and we allow $30 for such damage. The other Justices concurred. 78 435 86 551 86 630 78 435 106 225 78 435 THE TOWNSHIP OF PORT HURON V. LEWIS POTTS. Personal taxes-Action by town treasurer to collect. 1. A town treasurer has no authority to bring suit for the collection of a personal tax under section 35 of Act No. 153, Laws of 1885, after his authority to enforce its collection under his original or supplemental warrant has expired, and such suit can only be resorted to when the person assessed has no property that can be reached under said warrants, or when he resides beyond the treasurer's jurisdiction. 2. The authority of the county treasurer to issue a supplemental warrant to a town treasurer for the collection of personal taxes, under section 47 of Act No. 153, Laws of 1885, can only be exercised upon the town treasurer filing with the county treasurer the verified statement provided for by section 44 of said act, which must conform in all respects to the statutory require. ments. Error to St. Clair. (Canfield, J.) Argued October 30, 1889. Decided December 28, 1889. Assumpsit for collection of taxes. Plaintiff brings error Affirmed. The facts are stated in the opinion. 123 358 178 435 d137 198 Chadwick & Wood, for appellant. Frank Whipple, for defendant. SHERWOOD, C. J. Suit in this case was brought by the township to recover of the defendant a tax assessed against him upon personal property in the town of Port Huron for the year 1886. The defendant removed from the township to the city of Port Huron in the month of May in that year. Plaintiff bases its action upon the statute of 1885. See Laws of 1885, p. 175. The tax roll of the township was placed in the hands of the treasurer for collection, December 1, 1886, and remained in his hands until March 12, 1887, as appears by his return to the county treasurer. This suit was commenced May 24, 1887, over two months after the tax roll had passed out of the hands of the town treasurer, at a time when his authority to act by virtue of his warrant had expired. It is the town treasurer who is authorized to bring suit for a personal tax, and he can only do so at such times as he is authorized to make the collection. Section 35, Laws of 1885, pp. 186, 187. When this suit was brought he was not authorized to make such collection either by warrant of the supervisor, or by any action of the board of supervisors, or by the county treasurer. Sections 27, 47, Laws of 1885, pp. 185, 190. It is only when the tax on personal property cannot be otherwise collected that the treasurer is authorized to bring suit therefor against the owner thereof. He then may bring suit in the name of the township, and garnishee the debtor of the delinquent tax-payer. See Laws of 1885, § 35. The warrant is sufficient to enable the treasurer to make his collection, if property is within his jurisdiction of the person assessed, and suit cannot be resorted to except the delinquent has no property that can be reached by the collector's warrant, or he resides beyond the treasurer's jurisdiction. See section 36, Laws of 1885, p. 187. The warrant given by the county treasurer was without authority. The return made by the township treasurer did not contain the proper affidavit, as required by section 44 of the law. All the facts required by this section should appear in the return of the township treasurer, and be verified by him. It is this return upon which alone the county treasurer can act. In this case it does not contain a statement of all moneys collected by him on account of taxes, nor that the sums returned as uncollected remain unpaid, nor a statement of his inability to find any goods or chattels out of which to make the tax, nor that the amount of moneys collected is truly stated. It will be noticed by an inspection of section 44 of the should be stated. law of 1885 that all of these things Here is the provision referred to: "The township treasurer shall also make a statement showing the taxes upon personal property remaining unpaid, the names of the persons against whom assessed, and the amount against each; and in such statement shall set forth the amount of all moneys collected by him on account of taxes, which statement shall be verified by the affidavit of such treasurer, in which he shall state, in substance, that the sums mentioned in such statement as uncollected remain unpaid; that he has not, upon diligent inquiry, been able to discover any goods or chattels belonging to the person liable to pay such sums whereupon he could levy the same; and that the amount of moneys collected by him upon such tax roll is truly stated therein." There was a clear failure to comply with the statute, and the judgment must be affirmed. The other Justices concurred. LEWIS EMERY, Jr., V. THE COMMON COUNCIL OF THE VILLAGE OF THREE RIVERS. Water-power-Deed-Construction. The owner of a water-power and adjacent lands conveyed a site for a factory, and also an undivided one-eighth of the land flowed and subject to flowage. The deed further provided that if the undivided one-eighth of the water-power which was intended to be conveyed did not amount to 225 inches of water the grantee should have the right to use enough water from the pond to make up that amount, subject to the reservation by the grantor of the first use of a sufficient amount of water properly used to drive certain specified stones and machinery in his grist-mill,—the grantee to have the next use of the water to the amount specified in the grant. The deed further provided that in case of any break in the dam, or necessary repairs thereto, the grantor should pay seven-eighths, and the grantee one-eighth, of the expense, except such repairs as were needed in the separate races and appurtenances of each property, which were to be made by the owners. The grantor reserved the right to raise the dam two feet. In a suit against claimants under the grantee for an alleged improper use of water under the grant, the deed is construed as follows: a-To convey absolutely one-eighth of all the land flowed, or subject to flowage, including the water on such land. b-Under said deed the grantor parted absolutely with oneeighth of his water-power, and, if the same did not amount to 225 inches of water, the grantee was entitled to the use of enough of the remaining seven-eighths to make up the deficiency, provided the grantor could spare it without interfering with the use of his grist-mill, as specified in the deed. c-The reservation of enough water to operate the grantor's grist-mill referred to the seven-eighths of the water-power not conveyed by the deed. Error to St. Joseph. (Peck, J., presiding.) Argued November 13 and 14, 1889. Decided December 28, 1889. Case. Defendants bring error. Reversed: The facts are stated in the opinion. Howell, Carr & Barnard and B. E. Andrews, for appellants, contended: 1. The plaintiff claims a construction by parties,-a practical construction. But this must be one in which they all agree, or it is of no force; citing Burgess v. Badger, 124 Ill. 288; and the claimed construction was by tenants and subtenants, and is not shown to have been known to the owners. 2. The nature and quantity of interest must be ascertained from the instrument, and evidence of extraneous facts cannot be received to alter it; citing Jacobs v. Miller, 50 Mich. 119-126; Mathews v. Phelps, 61 Id. 332; 3 Washb. Real Prop. (5th ed.) 429, and note; 2 Whart. Ev. §§ 1050-1054; Jackson v. Foster, 12 Johns. 488; but the actual state of the property at the time of the execution of the deed may be shown as bearing upon its construction. 3. A deed is to be construed most strongly against the grantor, and most favorably to the grantee; citing Shep. Touch. 165; Piper v. True, 36 Cal. 606; and, if a grant can inure in different ways, the grantee may take it in such a way as shall be most to his advantage; citing Jackson v. Gardner, 8 Johns. 394; Jackson v. Blodget, 16 Id. 172; Vance v. Fore, 24 Cal. 436; 2 Dev. Deeds, § 848; 3 Washb. Real Prop. 422 (628); Martindale, Conv. 81; and exceptions and reservations are subject to the same rule; citing Gould, Waters, § 311; Alton v. Transportation Co., 12 Ill. 38, 58; Duryea v. Mayor, 62 N. Y. 592; Klaer v. Ridgway, 86 Penn. St. 529; Angell, Wat. §§ 149f, 149h; Garland v. Hodsdon, 46 Me. 511. 4. Whatever was intended to be conveyed was conveyed, -a statement of intention controls; citing Ousby v. Jones, 73 N. Y. 621; Morrison v. Wilson, 30 Cal. 344-348; Bobo v. Wolf, 18 Ohio St. 466, 467; Garland v. Hodsdon, 46 Me. 511; 2 Dev. Deeds, $$ 836-839; Mathews v. Phelps, 61 Mich. 332; which intention was to convey one-eighth of the water-power. The deed conveys one-eighth of the land flowed, and one-eighth of the land subject to be flowed, in fee-simple, and the waterpower being appurtenant to the land, a like interest thereof was conveyed; citing Mandeville v. Comstock, 9 Mich. 558; and the language following the description, viz: "Together with all and singular," etc., is important in showing that all the grantor's interest was conveyed in the land described; citing Dubois v. Campau, 24 Mich. 365, 366; Hoffman v. Harrington, 28 Id. 103, 104. 5. Under the term "appurtenances" only such easements as are necessary to a proper enjoyment of the estate granted will pass; citing Griffiths v. Morrison, 106 N. Y. 165. |