#### The President and Trustees of Williams College *versus*Keyes Danforth.

Where the defendant subscribed a paper whereby he engaged to pay to an incorporated college a sum of money, on condition that the college should remain in the town where it was then established, and that in case of its removal the subscrip, tion should be void and any money paid in pursuance of it be refunded, and that the corporation should within one year accept of the subscription and by vote order the subscription paper to be entered on their records, and these conditions were complied with, it was *held*that the promise was founded on a legal consideration and was binding on the defendant.

Assumpsit upon several demands, one of which was a subscription by the defendant, of $ 100, in aid of the funds of Williams College.

The subscription paper, dated October 5, 1819, is as follows:— Whereas the legislature, &c. by an act passed June 22, A. D. 1793, established in the town of Williamstown and county of Berkshire a literary institution, for the purpose of educating youth, to be called and known by the name of Williams College, and whereas the said institution has been found to be highly useful in promoting the cause of science, literature and religion, as well as in advancing the interests of this town and county, — we, the subscribers, desirous of continuing these important privileges to ourselves and the public, do hereby engage to the President and Trustees of Williams College, each one individually for his subscription, to pay the sum set against our several names, upon the following terms and conditions ; viz. (among others,) 1. That Williams College shall be and remain permanently in the town of Williamstown. 2. In case of its removal at any time before the principal sum so subscribed shall have been paid, the subscription is to be null and void as respects the subscribers. 3. In case of its removal after the principal sum so subscribed, or any part of the same, shall have been paid, the money so paid as principal is to be repaid by the president and trustees, to the subscriber who shall have paid the same, or to his legal representative. 5. The subscriptions are payable in ten years from the time when the president and trustees shall accept the subscriptions on the terms set forth in the instrument, and the subscriptions *549aie to be on interest from that time, and the interest is to be paid annually. 6. The president and trustees shall within one year accept of the subscriptions on the terms and stipulations contained in the instrument, and by vote order to be entered at large on their records, the instrument, with the names of the subscribers and the sums subscribed, with their assent to the same, or the same shall be void.

At the trial it was agreed, that the defendant signed the subscription paper, and that all the conditions had been complied with on the part of the plaintiffs. The subscriptions were accepted by the plaintiffs,, at a meeting on May 11, 1820, and recorded. At the same meeting it was voted to make all necessary repairs on the west college ; and in pursuance thereof, in the month of September following, the sum of $ 400 was expended in repairs. At the same meeting the plaintiffs appropriated the sum of $50 annually to the increase of the library; which has been duly applied. In September 1820, the plaintiffs appropriated the sum of $ 300 for the purchase of philosophical apparatus for the college. At other times, particularly in 1825, large sums were laid out in repairs of the college buildings, for the accommodation of the students. Additional expenditures have been incurred in lectures on anatomy and chemistry. In years previous to the subscription the plaintiffs were in the habit of making ordinary necessary repairs.

The defendant resides in Williamstown, and owns a valuable farm within one mile of the college. Since the date of his subscription two of his sons have been educated at the college.

' On November 10, 1818, the corporation of the college voted that it was expedient to remove the college. A committee was appointed to select a suitable location, and that committee selected the town of Northampton. On November 2, 1819, the corporation voted to petition the legislature for the removal of the college. This petition was presented to the legislature in January following, and the subscription of the defendant and others was exhibited to the legislature with a view to prevent the removal; and the legislature decided against a removal. The subscription was not accepted by the plaintiffs until after that decision.

*550*Sept. 19th.*

*Sept 20th.*

If upon the facts admitted the plaintiffs were entitled to recover the amount of the defendant’s subscription, the defendant was to be defaulted; if they were not, this demand was to be struck out of their declaration.

*C. A. Dewey, Porter*and *D.*JV*. Dewey, for the plaintiffs,

cited *Amherst Academy*v. Cowls, 6 Pick. 427; *Fisher*v. *Ellis,*3 Pick. 322; *M‘Auley*v. *Billenger,*20 Johns. R. 89; *Religious Society v. Stone,*7 Johns. R. 112.

*Briggs,*for the defendant,

said there was no consideration for the promise in question, that it was not founded on any advantage to the defendant or disadvantage to the plaintiffs ; tha the plaintiffs persisted in their application to the legislature for the removal of the college, notwithstanding the subscription, and it was not until after their petition was refused, that the subscription was accepted by them ; that there was no evidence that the legislature, in deciding against the removal, were influenced by this paper ; that by itself it was not binding on the defendant, and the defendant had done nothing showing a recognition of his subscription, as in *Fisher*v. *Ellis,*and some other cases ; that it did not appear that the subscription had any influence on the plaintiffs in regard to repairs of the buildings, or the increase of the library and philosophical apparatus, or that it had in any degree diminished the expenses of education ; and that in order to sustain this action the Court must overturn the decision in *Bridgewater Academy*v. *Gilbert,*2 Pick. 579.

He cited *Limerick Academy*v. *Davis,*11 Mass. R. 113; *Farmington Academy*v. *Allen,*14 Mass. R. 172; *Amherst Academy*v. *Cowls,*6 Pick. 427 ; *Boutell*v. *Cowdin,*9 Mass. R. 254.

Shaw C. J.

delivered the opinion of the Court. In this case there is an express contract, between parties capable of contracting, upon' mutual stipulations, each hhving an interest in the stipulations of the other, and these stipulations being such as might be enforced by judicial process.

The subscription, in the first instance, was in the nature of a proposal to the college, by its terms not binding till accepted, and before acceptance, revocable. But when the college accepted it, they bound themselves to the performance of the *551renditions. The conditions were, that they should apply the money, principal and interest, to the general literary, scientific and religious purposes of the institution, at Wiliiamstown, in which the defendant, with the other subscribers, declared that they had an interest; and, in case of the removal of the college from Wiliiamstown, that they would refund the money. This acceptance constituted an express undertaking ; and so long as the college continued at Wiliiamstown, the obligation thus to receive and appropriate the money, might be enforced in equity ; and in case of removal the defendant or his personal representative might have an action at law to recover back the principal sum paid. Besides, the Court must take notice that the plaintiff corporation are mere trustees for the public, administering a charity, for the promotion of education, that the purposes for which they are incorporated are the very purposes contemplated by the subscription, and that they can have no other interest in the recovery of this money, or of the other funds committed to them, than the promotion of those public and charitable purposes. These were then mutual and independent promises, and according to a well known rule of law, such promises are mutually considerations for each other. They were independent, because the college were to proceed immediately to make appropriations and incur expenses, and the defendant was to pay interest from the time of subscription, but he was not to pay the principal, until the expiration of ten years. *Amherst Academy*v. Cowls, 6 Pick. 427.

We think there was a sufficient legal consideration for the defendant’s promise and that the plaintiffs are entitled to recover.1

*Defendant defaulted.*

1

 See *Middlesex Husbandmen, &c.*v *Dams,*3 Metc. 133.