The districting of the town, in 1799, not being territorial, but merely of the persons named, was illegal and void. It has been fully settled, that the power given to towns by the statute of 1789, c. 19, § 2, to determine and define the limits of school districts, can be executed only by a geographical division of the town. Withington v. Eveleth, 7 Pick. 106; Perry v. Dover, 12 Pick. 206. But it was main tained in argument, that as the districts established in 1799 existed in fact, when the act of 1817 was passed, by which every school district in the commonwealth was made, for certain purposes, a body corporate, these districts by force of that act were established as legal districts. In support of this argument, the case of Whitmore v. Hogan, 9 Shep. 564, was cited. But that case is partially different from the present. In that case, the origin of the district, which was a very ancient one, did not appear; so that it might have had a legal *254origin, and was a territorial district; and it is of such districts that the court appear to speak.

The proceedings of the town of Athol in 1799, in setting off individuals by name, did not constitute legal districts, or what could properly be called districts at all; so that there were then in fact no districts to which the act of 1817 could apply. The act of the town on the 26th of April, 1847, to establish a 'new school district, was wholly illegal and void. By that act the town undertook to establish a single district, leaving all the rest of the town not districted. It is well settled, that a town can execute its power to form school districts only by a geographical division of the territory, and that the districts must be so constituted as to include all the inhabitants of the town. Perry v. Dover, 12 Pick. 206.

Great difficulty and injustice would be occasioned in raising money to build school-houses and defray other district expenses by a partial districting of the town. The districting by the town, in October, 1847, was legal and valid; being made in accordance with the provisions and regulations of law; the districts being territorial districts, and the whole territory of the town being included within them. The plaintiff, being afterwards duly taxed in a district so rightfully established, was legally taxed, and has no legal right to recover back the money. Judgment for the defendants.