Wilson v. Cochran ( 1843 )

The Court.

—We refuse the mandamus. Conceding that, the relator is entitled to a share of these damages, we think he is not entitled to this remedy; if indeed he has any remedy against the Levy Court. The return of the freeholders, and confirmation of the same, settles this question, at least so far as to authorize the Levy Court to pay the money to the person ascertained by that return to be entitled to it. If any one else has a claim to them, he must controvert it with the person to whom the damages are assessed. The Levy Court ought not to be subjected to the responsibility of trying such claim, or paying at their peril, after one court has by its judgment apparently ascertained to whom the damages are to be paid. The Levy Court has no power of trying this question, much less of apportioning the damages amongst persons claiming derivative interests, subsequent to the confirmation. The relator in this case, claims eight-ninths of the damages assessed to Amer Hollingsworth, because he has bought a part of Amer Hollingsworth’s land, and the road runs for eight-ninths of the distance, through the part bought by him. But it by no means follows that he will sustain eight-ninths of the damage.

Chandler, Rodney and Wales, for plaintiff. Gray, for Levy Court.

If William F. Wilson has a right to any part of these damages, he must seek his remedy against the person to whom, under the judgment of confirmation of t.he road return, they have been paid. We express no opinion as to this right of action, though we did throw out an opinion at the request of both parties, in a former trial as to this matter. That opinion was expressed extra-judicially and without much consideration; and the chief justice now entertains strong doubts whether the impression then given out, was correct. We leave this matter, howmver, for further consideration if neces-. sary.

Mandamus refused.