lowance of attorney's fees out of the general | Bros. v. Tallassee Mfg. Co. 64 Ala. 567, as to fund, not covered by any mortgage. The any issue involved in either case. The writer chancery court disallowed this claim. The is aware that counsel for Clopton, Goldthwaite other claim was that of Clopton, Goldthwaite et al., in written argument filed, insisted that et al., and arose from the following facts: The their claim was within the principle declared Tallassee Manufacturing Company was finan- in Fosdick v. Schall, and cited that case in cially pressed, and unable to raise money. It their brief; and this no doubt led to a discushad hypothecated certain cotton, which was sion, in the opinion of this court, to some exneeded for manufacturing purposes. It was tent, of that case and the principle insisted at that time a "going concern.' In order to upon; but it is apparent that this court did not release the cotton, and get possession of it for apply or undertake to enforce the doctrine in the use and benefit of the company, with the Lehman Bros. v. Tallassee Mfg. Co. for the consent of the trustees and assignees, and priority of the claim was denied. What was with the understanding had with these par said in the opinion as to extending the rule of ties that they were to be repaid, as appears Fosdick v. Schall to manufacturing enterprises from the pleadings, these parties, upon their was merely dictum It will also be seen that individual responsibility, raised the money the court placed the power of the court to for the purpose of releasing the cotton. grant the relief, not upon any abstract right or There was no litigation in the case, whatever, equity of claimants, but its authority to rebetween the bondholders and mortgagees, on quire a concession, as a condition precedent to the one hand, and other creditors, but the granting relief. In the carefully considered contest was solely between general creditors; case of Meyer v. Johnston, 53 Ala. 237, many the petitioners, as such, claiming priority of of the principles involved in this discussion payment over other unsecured creditors, upon arose. On page 323 the rights and property the facts stated, just as in the case of Merchants' embraced in the mortgage were considered. Bank v. Moore, 106 Ala. 646, out of the prop The mortgage conveyed all property, real and erty, or proceeds of property, not covered by personal, then owned, or which might thereany mortgage or lien. It was conceded after be owned, and all "tolls, incomes, and throughout the opinion, and by all the cred-profits." This court reaffirmed the validity of itors, that the bondholders were entitled to such conveyances, and declared that the rights everything covered by their mortgage; and the of the mortgagees were superior to subsequent opinion of the court was careful to keep sepa- claims for improvements, and even for the rate, not only the property itself covered by the construction and completion of the railroad mortgage, but the income from this source so far itself. Extensive quotations were made from as it could be separated from the income derived the cases of Dunham v. Cincinnati, P. & C. R. from property not mortgaged for the benefit Co. 68 U. S. 1 Wali. 254, 17 L. ed. 584. and of the bondholder. The phase of the litigation Galveston, H. & H. R. Co. v. Cowdrey, 78 U. applicable to the case under consideration arose S. 11 Wall. 481, 20 L. ed. 206, which are di only between unsecured creditors, as to their rectly in point, and many other authorities rights in the property, and the income from were cited. In the Case of Cowdrey, 78 U. S. property not included in the mortgage. Clop 11 Wall. 481, 20 L. ed. 206, the claim rested ton Goldthwaite et al., claimed that the facts upon the fact that it was for iron laid upon the gave them a preference over the other unse-road, and capital applied to the road, without cured creditors, as to the property not included in the mortgage. They set up no claim to property covered by the mortgage. The chancery court denied their right to any pref. erence whatever. This ruling was affirmed on appeal. The one or the other of the two conclusions follows,-either that the claim of Clopton, Goldthwaite et al., was not a claim similar to that preferred by Moore et al., in Merchants' Bank v. Moore, 106 Ala. 646, or if it was similar, then the decision of this court affirming the decision of the chancery court, which had denied and refused to decree a priority to petitioner, is directly in harmony with the case of Merchants' Bank v. Moore, and directly at variance with the new doc trine. On the other hand, if the claim of Clopton, Goldthwaite et al., was not of a similar character, and did not rest upon like circumstances, the decision is not an authority upon the question as issue, for there was no such question before the court to be adjudicated. The only ground for the reversal of the case in Lehman Bros. v. Tallassee Mfg. Co. 64 Ala. 567, was the error of the chancery court in holding that Lehman Bros. were not bona fide holders of the bonds. In all other respects the case was affirmed. It is impossi ble to find any conflict in the case of Merchants' Bank v. Moore, 106 Ala. 646, and Lehman which the road could not have been operated. On It is clear, from the authorities of this state and elsewhere, that when the Mary Lee Coal & Railway Company executed its mortgage to the Mercantile Trust & Deposit Company, its mortgage was valid as a conveyance upon all its property, and upon "income and tolls," and that this principle of law entered into, as a constituent of, that contract. That this prior sider. We have no such case before us. In the right, acquired by a solemn contract, cannot case of Meyer v. Johnston, the same distinction be displaced in favor of the claims of peti was drawn as to railroad corporations, on the tioners subsequently accruing, and which, in ground that the public were interested in such the absence of agreement, must be presumed enterprises, as that drawn in Fosdick v. Schall; to have been rendered upon the personal obli- and upon this ground the giving of a priorlien gation of the mortgagor, without impairing the to receiver's certificates was upheld. It is said obligation of the mortgage contract, is too clear that when Meyer v. Johnston was rendered the to admit of controversy. It is the doctrine of all case of Fosdick v. Schall had not been estabthe courts. Even in the cases where the rule lished. That is no argument. The same has been enforced against a prior mortgage, equity existed then, and it was directly rethe courts concede that the effect of the appli- pudiated. But that argument is further cation of the rule is to "displace" prior liens, stripped of all force when we consider the final and the "displacement" is justified solely upon determination of the case. The law of this the ground that courts of equity may demand state at that time required this court, on a secfrom the mortgagee, as a condition precedent ond appeal, to render judgment without being to relief, either in the appointment of a re- bound by the first appeal. When the case of ceiver, or foreclosure, that he concede or con- Meyer v. Johnston came up on a second appeal sent to the final payment of the claim of the (64 Ala. 603), it seems that the opinion in the laborer and materialman, although, by virtue case of Fosdick v. Schall had been delivered. of the mortgage, the lien, in fact and in law, We cannot doubt that the learned counsel repis prior and superior to any claim for labor or resenting the interests which had been adsupplies; realizing that the priority could not versely decided would have availed themselves be adjudicated upon any principle of "abstract of the new doctrine, had it been supposed to equity." So apparent was it that the innova- have been so far reaching. The same memtion impaired the obligation of contracts, the bers of the court presided on the first appeal as courts limited the application of the "condi- on the second, and also when the case of Lehtion precedent" to railroads, because of their man Bros. v. Tallassee Mfg. Co. 64 Ala. 567, public character, and to "going railroads," and was decided. What the attitude of this court where there was a "diversion" of income. should be when a case like that of Fosdick v. How it can be that the application of assets, Schall comes before it, need not now be conwhether money or property, to the satisfaction sidered; but in my opinion the rule cannot be of a mortgage, which, by valid contract known extended to cases like that before us, without to all parties, is a first lien upon it, is a "di- violating the sacredness of contracts. version" of assets, remains yet to be sustained. rule declared in Merchants' Bank v. Moore, There is much force in the position that the 106 Ala. 646, which strictly followed the depublic have great interest in railroads, and that cision of Meyer v. Johnston, ought to be adno one should be allowed to strike down, with-hered to. Certainly, if there was any conflict out warning, the public interest. This question is one not simply of debtor and creditor, growing out of contract, but of commerce itself. Many states have provided for these conditions by statute, and saved their courts from the imputation of "court-made law." Central Trust Co. v. Thurman, 94 Ga. 735. Whether the same results as to impairing the obligations of contracts would follow as to railroad mortgages executed since the promulgation of the rule of Fosdick v. Schall, we need not now con The between the case of Merchants' Bank v. Moore and the case of Lehman Bros. v. Tallassee Mfg. Co., the same conflict exists between the latter case and the case of Meyer v. Johnston, and which, if there be such conflict, was virtually overruled, without any reference to it. In my opinion, there was no conflict in any of the decisons previous to that rendered in the case at bar. Rehearing denied February 9, 1898. ARKANSAS SUPREME COURT. H. B. ROGERS, Exr., etc., of T. J. Rogers, Deceased, Appt., 0. placed within the corporate limits when a large number of the inhabitants of the town dwell beyond such limits. GALLOWAY FEMALE COLLEGE et al 3. A binding contract is made by a sub 1. A contract to establish a college "at" a certain town does not require that it should be placed within the corporate limits. scription to secure the location of a college at a certain town when the required amount is subscribed, and the subscription accepted, and the college located at that place, while agencies are constituted and put to work to carry out the enterprise. 2. A contract to establish a college 4. One will not be heard to deny the ex "in" a certain town does not require it to be NOTE. As to validity of subscription contracts, see First Presby. Church v. Cooper (N. Y.) 3 L. R. A. 468, and cases cited in note. istence of facts which he, either in express terms or by conduct, has represented as existing, and which he intended to be acted upon by another in a certain way, and which was so acted upon in good faith by the other to his detriment. For gift by promissory note, see Richardson v. 5. A subscriber to a fund to be given Richardson (Ill.) 26 L. R. A. 305. for securing the location of a college at a certain place on condition that a specified | Ark. 184; Arkadelphia Cotton Mills v. Trimble, sum is raised cannot avoid his subscription by 54 Ark. 316. showing a deficiency in the amount after it has been accepted as sufficient by the party establishing the college when he was a leading spirit in the enterprise, knew the subscribers, and knew what was demanded. 6. A private understanding with one of four persons who make equal subscriptions, to the effect that other persons will raise and pay a part of his subscription, will not release one of the other four, where this agreement did not amount to a release of the subscriber from any part of his subscription. 7. Agencies representing a church committee for the express purpose of enforcing subscriptions have no authority to vary the terms of the contract of a subscriber. 8. A college established by a church pursuant to subscriptions and propositions there for is the beneficiary of the subscriptions, standing in loco ecclesia as to the right to sue upon it. (Battle, J., dissents.) (January 22, 1898.) it is signed under a mutual mistake. It will Equity will reform an instrument only where never make a new contract for the parties. Sims v. Thompson, 39 Ark. 301; Wilson v. could not avail the plaintiffs. Calverly v. Harper, 40 Ill. App. 96; Hicks v. If the proof had been otherwise sufficient, the plaintiff's would be forced to stand by the contract as it is written for the further reason that they acquiesced in the contract in its present form after knowledge of all the facts. Bowden v. Spellman, 59 Ark. 251. A condition "must be strictly performed in every particular, in order to entitle the party, whose duty it is to perform it, to enforce the contract against the other party.' Story, Contr. § 32. Schuler v. Myton, 48 Kan. 283; 1 Beach, Modern Law of Contracts, $ 726. The surrounding circumstances may be looked APPEAL by defendant from a judgment of to by the court to determine the sense in which the Chancery Court for White County in favor of plaintiff in a suit brought to enforce payment of a promissory note. Affirmed. The facts are stated in the opinions. Messrs. Cockrill & Cockrill, for appel lant: There can be no recovery upon the note sued on because the college was located outside the town of Searcy. The language of the contract imports that the money was payable upon condition. 2 Parsons, Contr. 527; Turner v. Baker, 30 Ark. 186. The condition was that the college should be located within the corporate limits of Searcy. Williams v. Fort Worth & N. O. R. Co. Tex. 553; Annapolis & E. R. Co. v. Baltimore F. Ins. Co. 32 Md. 37, 3 Am. Rep. 112. the parties to a contract have used words of doubtful meaning. Weis v. Meyer, 55 Ark. 18; Kelly v. Carter, 55 Ark. 112; Swayne v. Vance, 28 Ark. 282; Vaughan v. Matlock, 23 Ark. 9; Glanton v. Anthony, 15 Ark, 543. A gratuitous subscription is only a continuing offer to make a gift, and if withdrawn before it is acted upon by the promisee in such manner as to raise a consideration, it cannot be enforced. 1 Whart. Contr. § 518, 528, p. 718; 1 Beach, Modern Law of Contracts. § 206; Cottage Street M. E. Church v. Kendall, 121 Mass. 528, 23 Am. Rep. 286; Richelieu Hotel Co. v. Interna82|tional Military Encampment Co. 140 Ill. 248; Twenty third Street Baptist Church v. Cornell, 117 N. Y. 601, 6 L. R. A. 807; Grand Lodge I. O. of G. T. v. Farnham, 70 Cal. 158; Stuart v. Second Presby. Church, 84 Pa. 388. At a town means at some place, within the town, rather than a place without, or even at the utmost verge of, but not in the town. Chesapeake & O. Canal Co. v. Key, 3 Cranch, C. C. 599; 1 Bishop, Directions & Forms, 80; 1 Bishop, Crim. Proc. 378; Blackwell v. State, 30 Tex. App. 416. At, when used to denote place, refers to a fixed and definite place. Difiori v. Adams, 53 L. J. Q. B. N. S. 437; Union P. R. Co. v. Hall, 91 U. S. 348, 23 L. ed. 430; Harris v. State, Dolan, 72 Miss. 960, 33 L. R. A. 85; Kaler v. Tufts, 81 Me. 63; State v. Old Town Bridge Corp. 85 Me. 17; Homer v. Homer, L. R. 8 Ch. Div. 758. In is, however, "more definite and specific than at. The bare acceptance of an offer to make a gift is not a sufficient consideration to bind the promisor to complete it. Pearsall v. Great Northern R. Co. 161 U. S. 646, 666, 49 L. ed. 838, 845. The promisor may withdraw at any time before the promisee has entered upon the performance of its contract or has made expenditures, or done something to its detriment in reliance upon the promised donation. 1 Beach, Modern Law of Contracts, § 206; Cottage Street M. E. Church v. Kendall, 121 Mass. 528. 23 Am. Rep. 286; Grand Lodge I. O of G. T. v. Farnham, 70 Cal. 158; Richelieu Hotel Co. v. International Military EncampHilgers v. Quinney, 51 Wis. 62; State, Westment Co. 140 Ill. 248; Twenty-third Street Bap Jersey R. Co., v. Camden Receiver of Taxes, 38 N. J. L 299; Kibbe v. Benson, 84 U. S. 17 Wall. 625, 21 L. ed. 741. Here the contract specifies that the college should be located in Searcy. The location be yond the corporate limits of Searcy was a violation of the express condition of the contract, and was fatal to a recovery upon it. tist Church v. Cornell, 117 N. Y. 601, 6 L. R. A. 807. Neither the mutual promises of the several subscribers, nor the efforts of the intended donee to obtain the subscriptions, constitute a consideration to sustain the contract. 1 Parsons, Contr. S 454; Cottage Street M. E. Church v. Kendall, 121 Mass. 528, 23 Am. Rep. Turner v. Baker, 30 Ark. 186; Jacks v.286, 16 Am. L. Reg. 550; Berkeley Divinity Helena, 41 Ark. 213; Haney v. Caldwell, 43 School v. Jarvis, 32 Conn. 412; Presbyterian Church v. Cooper, 112 N. Y. 517, 3 L. R. A. | he had no power to withdraw it; mutual obli468. gations had been assumed. There could be no recovery upon the note because the condition that there should be a total subscription of $25,000 was not complied with. Turner v. Baker, 50 Ark. 186; Stuart v. Second Presby. Church, 84 Pa. 388. When a party claims to recover on the ground of having performed a condition precedent, the burden of proving such perform ance is on him: and the performance must be satisfactorily established." 1 Whart. Contr. § 554, 601. Where subscriptions are made under an agreement that they are not to be binding unless a specified sum is subscribed, it is essential that there should be no conditions as to the liability of any of the subscribers not applicable to all. Blodgett v. Morrill, 20 Vt. 509 Confidential subscriptions, made for the purpose of making up the required sum, are a fraud upon the other subscribers, and should not be treated as valid subscriptions. New York Exchange Co. v. De Wolf, 31 N. Y. 273; 1 Whart. Contr. § 529; 1 Parsons, Contr. *454; 2 Thomp. Corp. § 1956. All the negotiations were with the Methodist Church, and there is not a syllable of evidence that it was then contemplated that the subscribers should deal with a corporation. It cannot be said that the contract was made for the benefit of a person whose existence was not contemplated, and such a person cannot sue upon it. See Presbyterian Soc. v. Beach, 74 N. Y. 77; Richelieu Hotel Co. v. International Military Encampment Co. 140 Ill. 248; Machias Hotel Co. v. Coyle, 35 Me. 405; 2 Beach, Priv. Corp. § 512. Messrs. J. N. Cypert, Green & Hicks, W. B. Smith, and J. W. House, for ap pellees: The original undertaking was to locate the college "at" Searcy and not"in" Searcy. The insertion of the word “in”instead of “at” in the note, with the fraudulent purpose of ingrafting new conditions in the contract, the terms of which had already been defined and understood, was a fraud upon the subscribers and the church, and the note should be reformed so as to conform to the original undertaking. 2 Beach, Mod. Eq. Jur. 544; 2 Pom. Eq. Jur. 847, 870; Truesdell v. Lehman, 47 N. J. Eq. 218; Phoenix Ins. Co. v. Ryland, 69 Md. 437, 1 L R. A. 548: Welles v. Yates, 44 N. Y. 525; Rider v. Powell, 28 N. Y. 310; Oliver v. Mutual Commercial Marine Ins. Co. 2 Curt. C. C. 277; Comer v. Himes, 49 Ind. 490; North & West Branch R. Co. v. Swank, 105 Pa. 555; Bryce v. Lorillard F. Ins. Co. 55 N. Y. 240, 14 Am. Rep. 249. If the proposition was to locate the college "at" Searcy, then the law is clear and the plaintiffs are entitled to recover. Purifoy v. Richmond & D. R. Co. 108 N. C. 100: Faires v. Cockerell, 88 Tex. 428, 28 L. R. A. 528, Wichita v. Burleigh, 36 Kan. 41; First Nat. Bank v. Wilson, 62 Ark. 143. When the subscription was presented and accepted by the committee representing the three conferences, the contract was closed and 1 Beach, Priv. Corp. § 65; Cook, Stock & Stockholders, 84; Ex parte Hodges, 24 Ark. 201; Philomath College v. Hartless, 6 Or. 158, 25 Am. Rep. 511; Bates County v. Winters, 112 U. S. 327, 28 L. ed. 745; Barnes v. Perine, 12 N. Y. 25; Cottage Street M. E. Church v. Kendall, 121 Mass. 528, 23 Am. Rep. 286; Thomp son v. Mercer County Supers. 40 Ill 379, Marie v. Garrison, 83 N. Y. 26; Ashtabula & N. L. R. Co. v. Smith, 15 Ohio St. 334; North Missouri R. Co. v. Winkler, 29 Mo. 320; Warner v. Callender, 20 Ohio St. 197: Fort Worth & R. G. R. Co. v. Lindsey, 11 Tex. Civ. App. 244; Williams v. Rogan, 59 Tex. 438; Amherst Academy v. Cowls, 6 Pick. 433, 17 Am. Dec. 387; Williams College v. Danforth, 12 Pick. 541; Armstrong v. Karshner, 47 Ohio St. 276. The subscription could not be withdrawn, because others had been induced to give large amounts by reason of Rogers's subscription. 1 Beach, Priv. Corp. § 109; 2 Beach, Corp. $532; Grand Lodge I. O. of G. T. v. Farnham, 70 Cal. 158: Amherst Academy v. Cowls, 6 Pick. 427, 17 Am. Dec. 387; Philomath College v. Hartless, 6 Or. 158, 25 Am. Rep. 510; Long v. Battle Creek, 39 Mich. 328, 33 Am. Rep. 384; Thompson v. Mercer County Supers. 40 Ill. 379; Troy Conference Academy v. Nelson, 24 Vt. 19; Phipps v. Jones, 20 Pa. 260, 59 Am. Dec. 708; Stewart v. Hamilton College, 2 Denio, 416; La Fayette County Monument Corp. v. Ryland, 80 Wis. 29; Armann v. Buel, 40 Neb. 803; La Fayette County Monument Corp. v. Magoon, 73 Wis 627, 3 L. R. A. 761; Maine Cent. Inst. v. Haskell, 73 Me. 143; Osborn v. Crosby, 63 N. H. 583; Watkins v. Eames, 9 Cush. 539; Second Precinct in Pembroke Church & Cong. v. Stetson, 5 Pick. 509; Troy Conference Academy v. Nelson, 24 Vt. 192; Lathrop v. Knapp, 27 Wis. 214; Petty v. Church of Christ, 95 Ind. 279. By accepting the subscription and agreeing to locate the college at Searcy, the church had promised something upon its part, it had assumed an obligation, it had suffered an inconvenience, it had done something to its detriment. The subscribers were the recipients of this obligation. It was not a mere offer upon the part of the subscribers to make a gift, they were getting something in return. Bates County v. Winters, 112 U. S. 327. 28 L. ed. 745; Barnes v. Perine, 12 N. Y. 25; Fort Worth & R. G. R. Co. v. Lindsey, 11 Tex. Civ. App. 244; Buchel v. Lott (Tex. App.) 15 S. W. 413. If Rogers was seeking to secure the location of the college upon a subscription that was not bona fide, he could not take advantage of the wrong. Martin v. Creech, 58 Mo. App. 391; Smith Soules (Vt.) 10 Atl. 536; Friedline v. Carthage College Trustees, 23 Ill. App. 496; Buchel v. Lott (Tex. App.) 15 S. W. 413. Even if a less sum than $25,000 was subscribed and accepted by the church this would not release Rogers from liability. This only concerned the church, and not Rogers. Smith v. Burton, 59 Vt. 420. Greer authorized the subscription and signed the note for $2,500 in order to hold the other 1 Beach, Priv. Corp. § 109; 2 Beach, Priv. Corp. 543; Cook, Stock & Stockholders, pp. 137, 138; Thompson, Liability of Stockholders, 122, 124; Bavington v. Pittsburgh & S. R. Co. 34 Pa. 362. If Rogers got what he contracted for he has no right to complain. Swartwout v. Michigan Air Line R. Co. 24 Mich. 403; Connecticut & P. Rivers R. Co. v. Bailey, 24 Vt. 477, 58 Am. Dec. 181; Smith v. Burton, 59 Vt. 419. The committee accepted the subscription and thereupon passed a resolution adopting Searcy as the location for the college. This was a written contract, carrying with it all the force of any written contract. First M. E. Church v. Donnell, 95 Iowa, 494; Allen v. Duffee. 43 Mich. 1, 38 Am. Rep. 159; Heard v. Morning Star Lodge, K. of H. 56 Ark. 265; Eastman v. Porter, 14 Wis. 46. three, so this would make Greer responsible | Searcy, which he did on Sunday, the 26th day for $2,500, in any event just as much so as of February, 1888. At the close of his address either one of the other three. He could not be he gave an opportunity to the people there aspermitted to take advantage of his own wrong. sembled to subscribe to a fund for the purpose If he could take no advantage, Skillern, Yar- above indicated. Eugene Cypert acted as secnell, and Rogers were not injured, their liabil- retary or recorder, putting down the names of ity had not been increased nor diminished, the subscribers and the amounts subscribed. hence they had no right to complain. The bishop stated that he "thought a bonus of $25,000 was necessary," and that, while he' could not speak authoritatively for the commission," he felt sure that bonus would secure the college." Much testimony has been adduced pro and con upon the question of whether the bishop, in making the proposition, and Rogers in accepting it, for a subscription to the location of a college, used the words, "in Searcy" or, the words "at Searcy." As to what particular words were employed is purely a question of fact. The proof is ample to support the finding of the chancellor that “at Searcy" was used. But it is argued that Rogers subscribed upon condition that the college was to be located "in Searcy," meaning "within the corporate limits." and that such was the contract even if "at" instead of "in" was employed to express it. The preposition "at," "when used to denote local position, may mean 'in, on, near by,' etc., according to the context, denoting usually a place conceived of as a mere point; . so with names of towns, as, at Stratford, at Lexington. . . . But if the city is of great size, 'in' is commonly used; as, in London. . . . Unless, again, the city is conceived of as a mere geographical point; as, our financial interests center 'at' New York.' Century Dict., At. "With the names of cities and towns the use of 'at' or 'in' depends, not chiefly upon the size of the place, but upon the point of view. When we think merely of the local or geographical point, we use 'at: when we think of inclusive space, we employ 'in,'— as, we arrived at Liverpool; there are a few rich men in this village.' Standard Dict., At. "Primarily, this word 'at' expresses the relations of presence, nearness in place.. It is less definite than in or on; at the house may be in or near the house." Webster, Dict., At. To determine the true sense in which words are used, we must consider the subjectmatter concerning which they are used, and the circumstances calling for their application to any given subject. State v. Old Town Bridge Corp. 85 Me. 17; Harris v. State, Dolan, 72 Miss. 964, 33 L. R. A. 85. Wood, J., delivered the opinion of the court: This suit was to recover of one T. J. Rogers, $2,500, the amount of a subscription to the Methodist Episcopal Church South, alleged to have been given for the purpose of locating, building, and maintaining a female college at the town of Searcy. The defense was that the promise was made on three conditions, viz.: (1) That three citizens of Searcy, other than himself, should subscribe $2,500 each; (2) that an aggregate of not less than $25,000 should be subscribed by the citizens of Searcy; and (3) that the college should be located within the then corporate limits of the town of Searcy,' -neither of which had been performed; also (4) that the offer to subscribe was withdrawn before it was accepted; and (5) that there could be no recovery upon the original subscription. We will consider these in the order they are presented by counsel. First. Was the subscription upon condition that the college should be located "within the corporate limits of Searcy?" The chancellor found "that Thos. J. Rogers, in his lifetime, to wit, on or about the 27th day of February, 1888, subscribed the sum of $2,500 for the pur pose of inducing the location, building, and maintaining a college for the education of females at the town of Searcy," etc. In the latter part of the year 1887 the Methodist Episcopal Church South, through its three annual conferences of the state, appointed a committee, with unrestricted authority," "to consider the educational interests of the church in Arkansas, and to provide for the establishment of a female college, to be under the patronage of the said conferences." Several towns of the state were spoken of as suitable for the location of such a college, and were competitors for it. Among the number was Searcy. A few of its citizens invited Bishop Galloway, who was the presiding bishop of the conferences in Arkansas, to deliver an address at The Methodist Episcopal Church South had in view the establishment of a college at some eligible town or city in the state that would offer a sufficient consideration in money to be used in erecting a college building. The church had no funds for that purpose, and was dependent upon such donations as might be offered by citizens of the town or city seeking the location of the college. The question uppermost in the minds of the representatives of the church was to raise as a consideration for the college location the sum of $25,000. The proposition of locating the college within or without the corporate limits of the town or city securing the location thereof was never thought of by those who spoke for the church until after the subscription list had been tendered and accepted. Bishop Galloway testified on this point: "I do not remember that he [Rogers] asked |