
    Stewart v. The Trustees of Hamilton College, 2 Denio, 403, 409.
    See opinion of S. Ct., 2 D. 408, by Nelson, Ch. J.
    
      Assumpsit; Subscription to Donation to a College.
    
    This was an action of assumpsit, brought on articles of subscription for the benefit of Hamilton College, by which the subscribers bound themselves: 1. To pay the sums set opposite their respective names, to be invested as a fund, and the interest applied to the payment of the officers’ salaries. 2. “ That we shall not be holden to pay the smns subscribed by us, unless the aggregate of our subscriptions and of contributions to this object, shall, by the 1st of July, 1834, amount to $50,000, nor until M. H., or A. B., shall certify that in his or their judgment, responsible subscriptions or contributions amounting to $50,000, shall have been made.”
    The $50,000 was not raised by actual subscriptions to these articles of subscription but on the 19th of June, 1834, fourteen persons of ample responsibility, signed and delivered, a paper, by which, for value received, they undertook to pay to the corporation of the college, the amount, of any deficiency in the subscription to the fund of $50,000 which should exist on the 30th day of June, then next. This was laid before M. H., above referred to, with the other subscriptions, on the occasion of making his certificate; which was to the effect, that in his judgment, responsible subscriptions and contributions to the sum of $50,000, had been made for the object specified in the subscription paper.
    On the trial, the defendant moved for a non suit, after the plaintiff had rested, on the grounds: 1, That his undertaking was void for want of consideration. 2. That the subscriptions had not made up the $50,000; unincorporated associations, and married women, being among the subscribers ; and the agreement of the fourteen to make good the deficit, was not binding on them, as a mere nominal subscription would discharge it; and besides that it was void for want of consideration. 3. That the proof varied from the case stated in the declaration. Non suit denied. Bill of exceptions, and a verdict for plaintiff, for amount of subscriptions remaining unpaid.
   The Supreme Court sustained the verdict, whereupon a writ of error was brought to this court.

The Court of Errors held either that the agreement was void as nudum pactum, or that the condition as to the $50,000 was not fulfilled by the undertaking of the fourteen to supply any deficiency, or that the agreement was not good under the statute of frauds, as not setting forth any consideration, or that the consideration laid in the declaration, was not sustained by proof; as one or other of these-points is maintained by some, and dissented from by other-senators, and it is difficult to say on which ground the decision is to rest.

However, judgment was reversed by 21 to 5.  