to said legacy, and the residue, if any, to extending the winter term of school the current year."

At a meeting of the inhabitants of the Seventh School District, held on March 5, 1866, it was voted to accept the report of the committee, which stated how the fund was invested, how much of the income was spent and the balance on hand.

Nothing further appears upon the records of the school district in relation to the committee or to the fund. Since the passage of the St. of 1869, c. 110, abolishing "the school district system in this Commonwealth," the Seventh School District has not been reëstablished, nor has the school district system been reëstablished since that time in Boxford.

The defendant Harriman has had the custody of the fund since June 6, 1864. Of the committee appointed by the Seventh School District to receive the fund from the parish, Andrew and Kimball do not now claim to be members of the committee of the district, and claim no interest in or authority over the fund. The defendant is one of the heirs at law of Ephraim Foster.

Subsequently to March 22, 1865, the fifth and sixth school districts, before any action was taken by the committee chosen by the Seventh School District in reference to the fund, at meetings called for that purpose, voted to relinquish any claim such districts might have in the fund to the Seventh School District.

No question is made as to the legality of any of the foregoing meetings of the parish or the town of Boxford or of the Seventh School District, provided at the time the meetings were called the district had the power or right to call such meetings.

At the meeting of the Seventh School District, held on the 5th day of March, 1866, there were several members of said parish present when said report was read.

Since July 8, 1865, the defendant has always claimed to hold the fund as chairman of the committee of the Seventh School District appointed at the date.

The defendant paid $361.36 out of the fund for the support of schools in the Seventh School District while claiming to hold the said fund as chairman of its committee, and such sum was paid with the knowledge of some of the members of the parish. If the statute of limitations was not a bar to the recovery by the plaintiff of the fund from the defendant, and if the plaintif

could maintain an action therefor in any form of action, either at law or in equity, then judgment was to be entered for the plaintiff for the amount of the legacy and interest, after deducting the defendant's disbursements, the amount for which judgment was to be entered to be determined by an assessor; otherwise, judgment was to be entered for the defendant.

J. C. Perkins & W. S. Knox, for the plaintiff.

E. T. Burley, (E. J. Sherman with him,) for the defendant. LORD, J. By the agreed facts, we understand that the parties wish to waive all matters of form and of process, and to desire the opinion of the court upon the question, whether the plaintiff, at the day of the date of the writ, was entitled to the funds given. to it by the will of the late Ephraim Foster. The question is not one of pleading, but is to be decided irrespective of the mode of proceeding; and if, in any process with proper parties in law or in equity, the plaintiff is entitled to hold and administer the trust created by the will, judgment is to be entered for the plaintiff, with this single qualification, that if, as against the defendant, the process is barred by the statute of limitations, judgment is to be entered for the defendant.

Upon the first question, we are of opinion that the plaintiff is entitled to the fund. The gift was a gift for charitable uses. In all the discussions upon the question, What is a charity? there has never been a question that education is a proper subject of a gift for charitable uses. The St. of 43 Eliz. c. 4, recognizes no charitable uses which are not now upheld, both in England and in this Commonwealth. In that statute are enumerated, in words, "schools of learning," "free schools," "scholars in universities," "education and preferment of orphans."

The beneficiaries are indefinite. The gift is not for the edu cation of any particular person or persons. The parenthetical expression "as the law directs" we can construe only as designed to embrace all persons for whom the law then designed schools to be supported. If the gift had been for the support of poor persons, as the law now directs, the natural construction would be for such poor persons as by law towns are required to

rnish support for. There can be no doubt, therefore, that the teneficiaries of the bequest are sufficiently indefinite to be the subject of a bequest for charitable uses.

No question is made by the defendant that the plaintiff is not competent to take and hold in trust for charitable uses. His claim is, that the plaintiff has fully executed the trust; if not exactly, at least cy pres.

This leads to inquiry into the legal effect of the action of the parish. It is quite probable that the purpose and intention of the plaintiff was to limit the benefits of the trust to such persons as should be resident within the Seventh School District. To do this, it conveyed the trust fund to the district, thereby surrendering all control of it, and permitting it to be administered by such district. If it were an absolute disposition of the fund, it would be a violation of duty. If, however, it was understood, as it seems to have been understood by all parties, as a mere substitution of the district for the parish, in order that the district might as trustee administer the trust, it was not competent for it to do so without the consent of a court of chancery, which it did not have. Harvard College v. Society for Theological Education, 3 Gray, 280.

The plaintiff accepted the trust. It has not administered it. Upon proper proceedings had, it would be compelled to account for the funds, and either to hold and administer the trust, or to pay the fund over to a new trustee, duly appointed.

The question submitted is, whether the plaintiff has authority to do that voluntarily, which it may by law be compelled to do; or rather, whether it may recover the property from one to whom it has wrongfully disposed of such property, instead of furnishing the necessary sum from its own resources. This must depend upon the circumstances of the case. We have no doubt that a trustee may so dispose of trust funds as that he cannot reclaim them, and we are equally clear that, under some circumstances, he may reclaim the fund, even though he has made what he intended should be an absolute and final disposition of it. It becomes necessary, therefore, to see what the facts are in the particular case. The defendant was a member of the plaintiff society; he was also an inhabitant of the Seventh School District, as well as an inhabitant of the town. When the plaintiff voted to accept the legacy, the defendant was chosen upon the committee to receive it, of which committee he seems to have been chairman; when the plaintiff proposed to transfer the

fund to the Seventh School District, and the district proposed to accept it, the defendant was chosen upon the committee of the district to receive it; of this committee he also seems to have been chairman, and at present is the only member of the committee, his associates disclaiming any authority to act or power over the fund. As chairman of the plaintiff's committee, the defendant received the fund and the nominal transfer of the fund to the district, involving no change in the actual custody of the fund. The defendant has had, since its receipt from the estate of Foster, the actual keeping and control of the fund, which he has kept specifically as the fund, and now holds. He has never contended that he has a personal property in the fund; but has always held it, claiming to hold it only as subject to the trust. This fund we think the plaintiff is entitled to hold.

The various changes and attempts at change of the district, and the final abolition of the system of districts, and the merger of all district property in the town, we have not thought it necessary to discuss; for the reason that, as we understand the agreement of facts, no question is made as to the parties to the suit, but only the question, whether, in any proceeding at law or in equity, the plaintiff has a right to repossess itself of the fund.

Nor can we regard the statute of limitations as a bar to the claim against the defendant. He took the fund as a trust fund. The general rule of law is, that one holding a trust fund cannot avail himself of the statute of limitations to bar the claim of

any person to such fund. He must show that in some open and notorious manner he has disclosed to the party in interest his purpose to hold the fund adversely to the trust, for a period of time long enough to bar the claim, and under circumstances in which he was subject to a suit for it. In this case there is no such evidence, nor any evidence that the defendant ever claimed the fund as his, but has always held it subject to the claim of the rightful owner. It is true that the report of the case finds that the defendant, ever since his appointment on July 8, 1865, "has claimed to hold said fund as chairman of the committee of the said Seventh School District;" but it is apparent that he was claiming it simply as a trust fund; for when it was demanded of him on April 29, 1875, he "declined to pay it, except upon a decree of the court, as to whom it belonged." It

is quite clear from this that, at least up to that date, he had made no claim to it except as a trust fund to be administered according to law; and we think that, at all events, the statute of limitations had not then begun to run.

Our opinion therefore is, that, by some suitable proceedings in law or in equity, the plaintiff is entitled to the fund, and that the statute of limitations is not a bar in favor of the defendant. And consequently, by agreement of the parties, judgment is to be entered for the plaintiff for such sum as may be agreed upon, or as shall be determined by an assessor.

Judgment for the plaintiff.

JOHN MCCAFFREY vs. WILLIAM C. CARTER.

Essex. Nov. 9, 1877.- Sept. 5, 1878. MORTON & SOULE, JJ., absent.

After judgment for the conversion of certain chattels, an action cannot be maintained for the conversion of other chattels taken by the same act, although the plaintiff was prevented from including them in the former action by the fraudulent acts of the defendant.

TORT for the conversion of 40 machinist's tools. Writ dated October 17, 1876. Answer, that the tools were part of a large number, converted at one time by one act, for which conversion the plaintiff had recovered judgment against the defendant, which had been paid.

At the trial in the Superior Court, before Gardner, J., it appeared that the plaintiff had occupied for two years a building, belonging to the defendant, as a machine shop; that about April 20, 1874, the defendant took possession of the premises under mortgages which covered most of the personal property therein, and excluded the plaintiff and his workmen therefrom, and that the defendant had since retained possession of the premises and the personal property. The plaintiff testified that during the year 1874, he and his family were ill, and he did very little about the matter; that afterwards a reference was attempted, which failed; that, while this was pending, he went to the shop about every week to see the defendant about it, but the latter