majority">Williams, Ch. J.

The right of the plaintiffs to recover in this scire facias, depends upon the question, what interest had John L. Lewis in the stone quarries, under the lease derived from the town of Middletown ? And as the authority of the committee who gave the lease, is founded upon the vote of the town, it becomes important to examine that vote, as well as the lease.

*557It has been contended, that Lewis did not acquire either a legal or an equitable interest under that lease.

The town vote, after counting upon the advantages to be derived from the Military Academy of Capt. Partridge, in consideration thereof, and of an interest in the lands to be purchased, and the buildings to be erected, in proportion to the net avails of the grant, granted to Nehemiah Hubbard and others, full right and authority, for and in the name and behalf of the town, to enter upon said quarries, personally, or by their agents, and to raise, dig and remove stone therefrom, in such manner and quantities, from time to time, within five years from the 1st of January then next, as they might deem necessary to be used in the erection of said buildings, and to defray the expense of raising and transporting the stone, not exceeding in value, at the cash price, 10,000 dollars; and if the quantity thus raised should exceed the quantity used in erecting said buildings and their appurtenances, the excess should, by said persons, be sold, applied and expended in completing the aforesaid buildings. And the committee were authorized to make a lease or leases, for said term, in pursuance of the foregoing vote, which should vest in the lessee all the right of said town to enter into or upon said quarries, and to dig, raise and remove therefrom stone, and to do any lawful act for and in behalf of said town, and in relation thereto, during the term, and for the purpose aforesaid. What were the powers of the committee under this vote ?

On the one side, it was contended, that they were authorized to raise stone sufficient to erect the buildings and pay for the transportation ; on the other, that they were authorized to raise such quantity of stone as in their opinion was necessary to carry into effect the object of the grant, provided it was done within five years, and did not exceed 10,000 dollars.

In support of the first construction, the defendants claim, that the power is expressly limited to the stone to be used in the erection of their buildings, and the expenses of raising and transporting them, and that even for this purpose, they could not proceed after five years, nor beyond 10,000 dollars : That this is the grammatical construction of the vote; to confirm which, they say, there is no stop after the word “ necessary,” in an instrument wherein there is a peculiar accuracy in the punctuation. The plaintiffs claim, that if this deed is read, as they suppose it was intended, with a stop after the word “ ne*558cessary,” all difficulty will be removed: That the committee are to procure stone, m such manner and quantity as they shall deem necessary, to carry into effect the object in view; and that their power is only limited by five years, and 10,000 dollars ; and that the court will look rather to the general intent and object, than rely upon any inference drawn from the pointing of a sentence.

The last is, in the opinion of the court, the true construction of this vote. Any other would leave no discretion at all to the committee. No discretion was required to determine the stone necessary, after deducting the labour and transportation. It could be determined readily, by the fact what stone were placed in the buildings, with the calculation which every one could make, how many more would pay for the raising and transportation of them. It can hardly be believed, that a committee was raised, and a power to lease given, if nothing more was intended. This committee were empowered to enter,upon the land, and take stone, in such manner and such quantity, from time to time, as they might deem necessary in the erection of said buildings, and defray the expense of raising and transporting them ; and if more were raised, in the time limited, than was required for the erection of said buildings and appurtenances, then the excess was, by said committee, to be applied and expended in completing the aforesaid buildings.

What stronger language could be used to show what was intended by the yote, taking it together? Stone were to be raised to erect the buildings ; a committee was appointed to see that the necessary stone were raised; and they are expressly directed, that the excess of stone “ so to he raised,” — that is, by virtue of the authority here granted, within the time and the amount limited, — shall be by them applied to the completing of the buildings. And can it then be doubted, that it was contemplated, that under the power to raise stone to the amount of 10,000 dollars, they should not be confined to raising enough for the walls of the buildings, when a provision is expressly made to appropriate the avails of the stone raised, beyond those necessary to place in the buildings towards completing them ? It seems to the court, there can be no doubt as to the true construction of this vote. An object, which was then thought to be important, was in view. A military academy was to be located there. That Could not be expected, un*559less buildings were prepared; and the erection of the buildings must depend upon voluntary subscriptions. What sum might-be drawn from individuals, could not be precisely known. The design, however, must be accomplished. The town, therefore, instead of granting a sum certain, vote to appoint a committee to procure from the stone quarries of the town, stone enough to erect and complete the buildings; or, at least, to procure so many, as in their judgment would effect that purpose, provided that it should not exceed 10,000 dollars, and should be taken Within five years. If with the private subscriptions, proper buildings could, in the judgment of the committee, be completed, with 5,000 dollars from the town, then they would raise that sum from the quarries ; but if they found it necessary, they might go to 10,000 dollars.

The vote also directs, that a lease be made to the committee, or such persons as they should direct, for five years ; which lease should vest in the lessee all the right of said town to enter into and upon said quarries, and to dig, raise and remove therefrom stone, and to do any lawful act in relation thereto, during the term, for the'purpose aforesaid. What, purpose? To the erection of the buildings and applying the avails beyond what was so used in completing them, not exceeding, however, 10,000 dollars.

When the object is thus apparent, and the duty thus clearly pointed out, it cannot be defeated, by the pointing of a sentence, or even the grammatical construction. When the intent of the parties to a contract is clearly discovered, it must con-troul, unless the language is decisively against it. Under this vote, then, the committee were authorized to lease the quarries for five years, and to raise 10,000 dollars.

But it is said, that the legal ownership remained in the town, and not in the lessee. It is not objected but that the lease is in pursuance of the vote. That vote, after directing that a lease might be made, proceeds as follows : “ Which lease shall vest in the lessee all the rights of said town to enter into and upon said quarries, and to raise and remove therefrom, stone, &c., and do any other lawful act for and in behalf of said town, in relation thereto, during the term and for the purposes aforesaid.” A lease founded upon this vote, must give a perfect right of entry and possession, for five years, with a right to do the acts that the town might do, in relation to this subject. The party *560must ^ave a rightto maintain trespass and ejectment against á or even an agent of the town. Leiois, then, by vir-tueof this vote and lease, became the legal owner, during the term. Indeed, this was admitted, by the counsel who closed the case for the defendants.

It is said, that if Lewis had the title, he forfeited it, when he failed to fulfil his contract and abandoned it. If ibemshad a vested interest in this quarry, by virtue of his lease, it may well be doubted whether there could be a forfeiture, because he failed to perform on his part. However that may be, a thjrd person/and that person his lessee, cannot set up this claim, without shewing also, that the forfeiture has been claimed, by the party interested.

It is also said, that Lewis, having an equitable interest, was merely a lessee for the town, and that this process cannot be used to draw from him money, which does not equitably, as well as legally, belong to him : that the creditors of an absconding debtor cannot thus draw trust money from his hands. This principle is certainly correct, and the defendants must have the benefit of it. But when their counsel go further, and claim, that the plaintiffs are bound to show, that the absconding debt- or has an equitable as well as a legal interest in the property in question, it is a proposition which cannot be admitted. It is an ingenious attempt to cast the burthen of proof from themselves upon the other party. The rule is this : If the plaintiff shews a title to the property in the absconding debtor, he makes out a prima facie case, unless his proof shows, that this title is a mere equitable one.

But the defendants will be permitted to rebut this prima facie case, by showing, that the interest of the absconding debtor is merely an equitable one; and whenever he claims such an equity to exist, he must shew it. Suppose the town of Mid-dletown were to interpose these equitable claims to this property, must they not shew it ? And can these defendants, who claim only by virtue of them title, be required to do less than they must have done ? If so, then they might defend themselves under a supposed equity in the town of Middletown, which the town could never establish, and then hold this money against the creditors of John L. Lewis, or be obliged to pay it over to Lewis, after the town of Middletown had failed of a recovery, and after it was too late for the attaching creditors to hold.

*561Is it then shewn to the court, that Lewis had only an equitable interest in this quarry, or the avails of it ? If the - fact is so, it is a little remarkable, that the town should not have come and asked the interposition of the court, to stay proceedings so injurious to them, and obtain a more minute disclosure of the facts, which tended to show their interest. Or, if the defendants believed this, and had not all the evidence, they might, by a bill of interpleader, have brought all the facts before the court. As they have chosen to rely upon the facts here disclosed, we will examine them, and see whether this part of the defence is supported.

In the first place, it is claimed, that the vote and lease show that Lewis was a mere trustee for the town. Now, the lease is a lease of all the right of the town to enter upon the quarries, to dig, raise and remove therefrom stone: to have and to hold, use, occupy and improve the premises, &c., to him and his heirs, executors and assigns, for the term of five years. These are apt and proper words, certainly, to convey an interest. It is added, however, after the clause relative to the digging stone, “ and do any lawful act, for or in behalf of said town and the lease counts upon and recites the vote of the town.

That vote, in consideration of the interest which the town has in the establishment of this school, and the land to be purchased, and the buildings to be erected, grants to certain persons full right and authority, for, and in the name and behalf of said town, to enter upon said quarries, personally, or by their agents, and to raise, dig and remove therefrom stone, &c. The vote then proceeds to authorize a lease to be made, which shall vest in the lessee all the right of the town to enter into said quarries, and dig, raise and remove stone therefrom, and do any lawful act, for and in behalf of said town, in relation thereto. That the committee had right, under this vote, to lease this quarry and demise a real interest therein, for five years, and to raise 10,000 dollars, cannot be doubted. The vote is not, that this is to be done for the use of the town, Ymtfor and in behalf of the town. The words, perhaps, would not be important, if the intent was clear ; but the words, “ for and in behalf of the town,” would rather import an agency than a trust. But when an interest is thus clearly granted, it is not consistent with it to consider this an agency. Nor is it very easy to dis*562cover why any lease should be given at all, if the object was to -create an agency, or even a trust.

But if this was a trust, what was the nature of it? It was, that the lessee might, within five years, raise 10,000 dollars from these quarries, to be expended in erecting and completing the buildings for The American Literary and Scientific Academy. If the contractor did erect and complete, or cause to be erected and completed, these buildings, he was entitled to the 10,000 dollars, out of the avails of these quarries, if the committee chose to raise that sum out of them. This they have done ; and Lewis was authorized to raise this sum from them within five years; and the ground has been purchased and the buildings erected. What interest, then, has the town of Middletown in the 10,000 dollars, to be raised from these quarries within the five years ?

It does not seem to be denied, that if Lewis had gone on and finished the buildings himself, the town could not have had any equity whatever. But it is claimed, that Lewis became bankrupt, and having received the moneys, which, under the contract, he was entitled to receive, and the committee declining to make him further advances, Samuel D- Hubbard was appointed to complete said buildings, which he did, and being in possession of said lease, he did, with the assent of Lewis, receive from the defendants 2,232 dollars, the avails of said quarries.

Now, what was the contract of Lewis with the committee 1 He agreed to erect and complete the buildings, by the 4th of July, 1825. They agreed to assign him the notea of the subscribers, or the avails thereof, in proportion to his progress in the buildings, reserving, however, 3,000 dollars, to be paid upon their completion, with 3,500 dollars for the purchase of the land, and to assign to him the interest in the quarries, which they had by the town vote, under which Lewis received and leased the same to the defendants. It is said, that Lewis thus abandoned the contract; and of course, his interest in the quarry ceased. We are now to suppose, that if he had completed his contract, he would have been entitled to the whole avails of his contract under this lease, and the 3,000 dollars reserved until it was completed. Hubbard went on and completed it, and with the assent of Lewis, received from the *563avails of the contract 2,232 dollars ; and there is no evidence , . whatever before this Court, that he advanced one cent from own funds, or from the treasury of the corporation.

How, then, can the town of Middletown claim the avails of these quarries ? For aught that appears, Lewis has invested every cent received by himself or Hubbard from these quarries, in the lands and buildings which are now completed ; and the town have all that they were entitled to have. The buildings were not indeed completed at the day ; but it cannot be claimed, in a court of chancery, that this fact revested all the interest in the town, or was, in itself, an abandonment of the contract. Nor is it sufficient evidence that Lewis abandoned the contract, because he assented that Hubbard should receive the rents of the quarries, while he was finishing the buildings ; or that he told the defendants he had given up the lease to Hubbard. That might, indeed, justify the defendants in making payment to Hubbard; but it would not show, that Lewis had abandoned the contract. It seems rather, as the committee had a right, notwithstanding this lease, to keep back 3,000 dollars, that when Lewis assented, that these funds should be, by Hubbard, applied to this purpose, his object was to fulfil the contract, in the only way in which it was in his power to do it ; and that upon the facts shown to the court, there was no intention to abandon it.

Something, indeed, is said in the motion, from which it may be claimed, that it is found he abandoned it. It is said, that “ he became deeply insolvent and unable to proceed with the contract; the committee having advanced to him all that he was entitled to, under said contract, and declining to make further advances, Samuel D. Hubbard was appointed, in August, 1825, treasurer of the corporation, and also was appointed to complete said buildings, which he accordingly did, after the abandonment thereof, by said Lewis as aforesaid ; and said Hubbard being in possession of said lease, received from the defendant,” áte. This only brings us back to the question whether his insolvency and inability to perform his contract, with his delivery of the lease to Hubbard, was an abandonment of it. That he assented to Hubbard's finishing the buildings, may be fairly inferred ; but that he meant also to give up the 3000 dollars reserved by the committee, until the buildings were completed and the avails of the quarries, *564both of which he was entitled to, upon their completion, cannot be inferred. The fair inference is, that both parties were willing that the contract should be completed, from the avails of the funds designated therefor ; and when that was done, unless some claim for damages was made, these funds remained in equity, as well as at law, the property of Lewis. The fact, then, appearing, that the buildings were completed, though not exactly by the time, and that there were funds remaining, the avails of the quarries, in the hands of the defendants, there is no reason why these funds should not be made available to the creditors of Lewis. No reason is shewn, why the town of Middletown should have any controul over them. They authorized the committee to part with them, for certain purposes. Those purposes had been acccomplished, without the aid of any other funds from the town or the individual who executed it; and the town have made no claim for damages arising from the omission to complete them at the time. If, therefore, it is admitted, as the defendants claimed, that these stone could not, in the progress of these buildings, have been attached and taken away to pay the debts of Lewis, it by no means follows, that these defendants can now set up an equitable claim in the town of Middletown, when it is shewn, that they have received the very consideration which they contracted for, the erection of these buildings. The defendants, by the contract, became the debtors of Lewis ; and no interest is shewn in any other person, legal or equitable, to prevent this debt from being reached by the creditors of Lewis, after he absconded. The plaintiffs, therefore, are entitled to recover.

Several other objections are stated in the motion as having been made to the charge. One only of them, however, was insisted on ; — that the jury were told, the plaintiffs could recover the balance of one tenth of the debts for stone sold, deducting bad debts, whether collected or not; and it is claimed, that the defendants were rather the attorneys, than the debtors of Lewis. Lewis leased to them his interest in the quarries, he paying 10 per cent, on the sale, bad debts being deducted. Lewis, then, parted with his interest. He could not sue for these stone. They were sold, by the defendants, on their own account; and they were to pay Lewis, as the rent, ten per cent, of the net avails. The defendants, then, upon the sales, *565became indebted; but the debt was not payable until collected from the sales, or until a reasonable time had elapsed. Still the debt existed, payable in future, and subject to a deduction arising from bad debts. If the debts were not due, or a reasonable time for their collection had not intervened, or a deduction ought to be made for bad debts, the defendants might have shewn these facts. Not having done it, the charge was correct; and no new trial ought to be granted.

In this opinion the other Judges concurred.

New trial not to be granted.

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