Parker, C. J.
This must be regarded as an action of assumpsit to recover of the defendant money in his hands belonging to the plaintiff notwithstanding the first count as stated in the case saved has very much the appearance of a declaration in tort.
The charge of the court seems to imply that the plaintiff might recover if the defendant had not acted in good faith, notwithstanding he had expended in and about the schools in the district, all the money which he received. But any wrongful appropriation of the money by paying more than he ought to have paid for board and fuel, would furnish ground for a different proceeding.
Assuming however that the verdict is founded upon the latter part of the charge, for a balance in the hands of the defendant unexpended, we are of opinion that the action can not be maintained. The statute which was in force when the money was received, and which remains substantially on the revision, directed the division of towns into school districts and gave them certain powers. They may build and repair school-houses, &c., and vote money for the purposes thus specified, which is to be assessed by the selectmen. They may maintain certain actions enumerated, perhaps others also, in relation to the subject matter. They are qua corporations thus far. But they have no power to raise money for the support of schools, or to appropriate such money. School taxes may be raised by the town, and are to be assessed by the selectmen, who are to assign to each district its proportion, and to pay it over to the prudential committee, which committee may in certain cases be appointed by them. It is the duty of the prudential committee to appropriate the money to the purposes for which it was raised.
The selectmen assign the money within the meaning of the law, when they apportion it and pay the different portions to the prudential committee. It is not to be paid to the district or to any other officer of the district. Perhaps the selectmen might be justified, under special circumstances, in superintending the expenditure themselves, in a district where there was reason to apprehend danger that the money would be misapplied and lost. That might be an assignment. It is not necessary to settle that.
The money in this case was lawfully paid to the defendant. Of that no question is made. But the assignment of the money to the district for the purpose of being expended in the keeping of schools, and the payment of it to the defendant, under the provisions to which we have referred, tested no legal title to the money in the district; nor does his failure to expend any portion of it, supposing such failure to have occurred, operate to change the legal title and give the district the right to claim the possession of it.
Verdict set aside.