I. It is not established by the testimony that the college corporation has been dissolved, or has wholly ceased to exist. It may be, as claimed by the plaintiff, in articulo mortis; but it is not dead. We have no occasion, therefore, to determine what would be the plaintiff’s rights in equity or at law, if the corporation were no longer in esse. In that event it might be (subject to the rights of creditors) that the unpaid scholarship notes could not be enforced; or, if paid, it might be that the scholarship holder would have his action for a breach of the promise contained in the certificate of scholarship, viz. (in substance), to educate, free of tuition, any scholar which may be presented or sent by such holder.

II. The petition in this case is not upon the theory that the note was obtained from the plaintiff by the false and unauthorized representations of Smead (the agent of the defendant), to the effect that the scholarship notes were to be and remain a distinct and separate trust fund, of which the interest only could be used. The college, in this suit, deny that such was the fact, and deny that Smead had any authority so to represent. Yet, if he did so represent, and it was false, and such representation constituted the material and operative inducement to the plaintiff to execute the note and take the scholarship, these and similar facts are of a nature to have been available to the plaintiff by way of defense to the action upon the note; and no reason is given why the plaintiff did not, in that action, if he was defrauded by the agent, defend upon that ground. These same facts might, perhaps, be the basis (if judgment on the note had not passed against the plaintiff) for an application, on tendering back the scholarship note, to rescind the contract.

But such is not the nature of the present action. The plaintiff does not, in his petition, seek to be relieved on the grounds of fraud, nor state any reason why he did not make this defense when sued on the *575note. Nor does the plaintiff ask a rescission of the contract. But his petition is bottomed upon the proposition, that he entered into a valid contract with the college, through an authorized agent, by which the amount of his and other similar notes were to be and remain a trust fund, the principal of which was to be kept intact and inviolate; that the trustees have abused the trust by misapplying the fund, and that he, upon payment, has the right to invoke the aid of a court of chancery, in virtue of its jurisdiction over trust and their administration, to compel the trustee to observe the trust and carry out the contract.

But, in this view of the plaintiff’s case, the difficulty is, that the testimony does not sustain it. The clear weight of the evidence is, that the agent of the college, with whom the plaintiff dealt, was not authorized to make the contract which the plaintiff claims he did make, and which he seeks to have enforced.

The only contract which the college authorized was that which was evidenced by the note and the certificate of scholarship. The note would be due and payable to the college according to its terms. When received by the college, they would have the unrestrained right to use it as they pleased, unless the plaintiff showed a valid contract limiting this right. This he has alleged but not established. The mere sale of scholarships, which the defendant, under the resolution of December 6, 1855, authorized to be made, would not, without more and without further authority from the college corporation, make the scholarship notes a perpetual trust fund, as claimed by the plaintiff. Neither this resolution nor the certificate of scholarship necessarily contemplate any such trust fund. On the face of these, we cannot say that more was contemplated than that the one party should pay $200, and, in consideration thereof, receive the promise of the other party (the college), executory in its character, to educate, free of tuition, and perpetually, one scholar, to be named by the holder of the certificate.

Because, in point of law, the resolution and certificate alone do not establish, and because, in point of fact, the evidence aliunde has not established any valid and binding contract on the part of the college, impressing a trust character upon the scholarship notes and fund, and because the defense of fraud is not, for reasons before given, available to the plaintiff in this proceeding, we are of the opinion that the decree below was correct, and must be

Affirmed.