delivered the opinion of the court,
• Two controlling questions- arise under the eighteen assignments of error. The one involves a consideration of the rights of the defendant in the property in question; the other whether it has selected the proper form of action to assert these rights.
*457The defendant in error was duly incorporated by the Court of Common Pleas of Northampton county on the 6th of October 1853. The company had had an existence and organization as a fire company for some fifty years prior to its incorporation.
The application for the charter avers that “-the said corporation is intended to be situated in the borough of Bethlehem ” in said county. The charter declares that the incorporators have for their “ object, the protection of the property of our fellow-citizens from fire.” Thus the sole purpose for which it was incorporated is clearly and distinctly expressed.
Its object was not for the private gain and profit of its members, but for the public benefit. It existed for no other or different purpose. The property which it acquired, in aid of its object, was therefore for charitable uses. While the statute of 43 EJiz., c. 4, of charitable uses, is not extended to Pennsylvania, yet the principles of it as applied by chancery in England, have long been recognised as in force here by common usage: Witman v. Lex, 17 S. & R. 90; Babb v. Reed, 5 Rawle 151; Methodist Church v. Remington, 1 Watts 218 ; Magill v. Brown, C. C. U. S. (Brightly’s Rep. 347); Thomas v. Ellmaker, 1 Pars. Eq. Cas. 98; Pepper’s Will, Id. 436 ; 7 Johns. Ch. 294; Wright v. Linn, 9 Barr 435.
In most of these cases, the rule was -applied to voluntary associations or unincorporated companies. When applied to incorporated companies the reason is stronger, and the duty of a court of equity under our statute is free iron doubt.
The first section of the Act of 6th April 1791, 3 Sm. Laws 20, authorized the incorporation of citizens of this Commonwealth for “ any literary, charitable or religious purposes.” Section 1 of the Act of 8th April 1833, Pamph. L. 238, extends the provisions of the previous act to beneficial societies and associations, and to fire-engine and hose companies. Section 2 declares that all corporations established under the foregoing act and all that may hereafter be incorporated under this act shall be able and capable in law to take and hold real and personal estate, “ to be employed and disposed of according to the objects, articles, and conditions of the instrument upon which the said corporations respectively are as aforesaid formed or established, or according to the articles and by-laws of said corporations respectively, or of-the will and intention of the donors.”
The fire apparatus of this company was originally furnished by the Moravian Society, which was the owner of all the real estate in Bethlehem until a few years prior to the incorporation of the company. As additional or improved apparatus was required, it was procured by subscription, or by fairs, concerts, and similar enterprises.
Within the limits of its charter the defendant in error had all the rights of a corporation — it held the legal title to property — yet *458it held it in trust for the uses and purposes of its creation, that vras for the protection of the property of their fellow-citizens from fire. It had no right to divest the property of that general trust nor to divert it from that general purpose. The corporation may in good faith dispose of any specific article, using the proceeds thereof in the acquisition of new or improved apparatus, to be used for the purpose mentioned in its charter. In whatever form the company changes the property, the trust still inheres. It cannot sell it and divide the proceeds among its members.
The company held its property subject to the supervisory power of a court of equity. By the 13th section of the Act of 16th June 1836, the Supreme Court and the several Courts of Common Pleas are given all the jurisdiction and power of a court of chancery, so far, inter alia, as relates “ to the supervision and control of all corporations other than those of a municipal character.”
It is true among the enumerated powers vested in the corporate oificers of a borough by section 2 of the Act of 3d April 1851, Purd. Dig. 168, is one “ to make regulations relative to the cause and management of fires,” and to “ authorize the borough authorities to appropriate money for the purchase of fire-engines for the use of said boroughs and to fire companies.” But a right to make a general regulation relative to the management of fires, gives no right to the borough authorities to take out of the possession of an incorporated company the fire-engines and apparatus which is not owned by the borough. It is not given to the borough authorities to decide that the company has forfeited all its rights to the possession and custody of the property it holds in trust, and therefore has no rights entitled to respect. The borough may purchase and own fire-engines or apparatus, or it may appropriate money as a donation to a fire company to assist in their purchase. What the borough owns herself, she may take possession of and control or sell it. What an incorporated company owns the borough cannot control in that manner.
In case the contributors to the erection of a church edifice, discover the corporation is not using it according to the trust for which it is held, surely it will not be contended that they on their own motion can go and take adverse possession of the building. The property does not belong to the contributors, but to the corporation, to be used by the corporation according to its charter.
The same principle applies to a fire company. Whatever may be subscribed or otherwise donated, is given to the corporation to be used by it for the object and purpose declared in its charter. The rights of eestuis que trustents therein must be protected and enforced in and through the courts : Roshi’s Appeal, 19 P. F. Smith 462. The fire company is the legal custodian of the property, and is entitled to notice and hearing before its rights shall be impaired. Nor was the corporation deprived of this right by the fact that a *459portion of its members assembled without notice and in an irregular manner and favored the disbanding of the company. The action then had was insufficient to work a legal dissolution of the corporation or destroy its rights of property. The first section of the Act of 9th April 1856, Purd. Dig. 285, pl. 21, prescribes the manner in which a corporation may be dissolved on its own petition by the Common Pleas of the proper county. A temporary non-user of the property did not divest the rights of the company therein : Wright v. Linn, supra ; McKissick v. Pickle, 4 Harris 148. We conclude therefore that the plaintiff in error has no just cause to complain of the answers of the court in regard to its assumed claim of right to the possession of the property.
The tenth assignment strikes at the form of the action. The declaration was in assumpsit. This action cannot be sustained unless there was an express contract, or the law will imply a contract: 1 Chit. Pl. 99. It does not lie for a chattel illegally detained : Willet v. Willet, 3 Watts 277. The plaintiff cannot waive the tort and recover the value of the goods unless the tort feasor has sold the article and received the money: Id.; Gilman v. Wilbur, 12 Pick. 120, or where he has taken it as merchandise to market for the purpose of sale and in the absence of any evidence to rebut the presumption of a sale and receipt of the money: McCullough v. McCullough, 2 Harris 295. This case was correctly said to be ruled by Longchamp v. Kenny, 1 Doug. 132, K. B., but in referring to that case the remarks of Mr. Justice Burnside are calculated to convey a wrong impression as to the extent to which it goes.
The facts of the case were that tickets for a masquerade party had been delivered to each plaintiff and defendant to sell and account for or return after- the party. The defendant got possession of one ticket that had been delivered to the plaintiff. On demand the defendant refused to pay for it or to give any satisfactory answer. Thereupon the plaintiff paid for it, and then brought suit against the defendant. The declaration was for money had and received, and for money paid.
In delivering the opinion of the court, Lord Mansfield said, “ If he sold the ticket and received the value of it, it was for the plaintiff’s use, because the ticket was his. Now as the defendant has not produced the ticket, it is a fair presumption that the defendant had actually received the money for the ticket.
If goods be sent to a merchant who refuses to receive them because they are not such as he ordered, and under pretext of re-delivering them, substitutes' spurious articles, and the genuine ones are not returned or accounted for, the owner may waive the tort and recover the price for which they may be presumed to have been sold by the defendant, in an action for money had and received ; but not for goods sold and delivered: Gray v. Griffith, 10 *460Watts 431. When one tortiously, in possession of another’s goods converts them into money or securities, assumpsit for money had and received may be maintained. This suit is governed by equitable principles, and lies only where the defendant ex aequo et bono ought to refund the money received: Deysher v. Triebel, 14 P. F. Smith 383. In many cases where the defendant has received goods wrongfully, a contract for the purchase will be inferred and the plaintiff may waive the tort and. recover the amount in an action for goods sold and delivered: 1 Leigh’s Nisi Prius 91; but if there be no unfair dealings or other circumstances from which an implication may arise under such a count a recovery cannot be had of the value of specific articles in the possession of the defendant, claimed as the property of the plaintiff: Deysher v. Triebel, supra.
Turning to the fact's in this case, we find that the borough authorities took possession of the property on the 3d of July 1873, by exercising dominion and control over it. They retained it in its specific form when this suit was brought,' four days thereafter. The possession was not taken fraudulently, but under a claim of right. No conversion of it into money or securities had taken place. It was merely detained and held. No implied contract or receipt of money can be implied. The whole evidence rebuts any such presumption. ' It follows, therefore, that this assignment only is sustained, and for that reason the judgment must be reversed.
Judgment reversed.