State ex rel. Sharp v. Trustees of Original Surveyed Township 4, Range 3 ( 1825 )

By the Court:

The fourteenth section of the act of February 6,1810, to incorporate the original surveyed township, under which the right is claimed, provides, that the “trustees shall pay to the agent of each society an equal dividend of the rent, according to their numbers, within three months after it is received.”

The trustees for the time being, acting under this law, decided the claimants were not entitled, and divided the money within the time prescribed to those whom they adjudged entitled to receive it. It is, therefore, not subject to the order of the present trustees. The order required, if given upon the specific fund, would be unavailing. And we do not conceive that a general order to be paid out of any moneys in the treasury, can be given under the law. The proceeds of each year are specifically appropriated to each society, according to the number of its members for that year. There are different owners of the rents of each separate year, and if injustice be done in making one dividend, it can not be corrected, in a subsequent one, without injustice. We have no doubt but that the Union Society were entitled; a dividend ought to have been made to them, but it was not done. The fund was distributed to others, who are not before the court. Neither are those who made that distribution. The persons entitled to the funds now in the treasury, or that may come into it, are not parties to this proceeding, and a judgment affecting their rights can not properly be pronounced. The consequence of this decision may be the loss of the claimant’s rights. This, it is admitted, is a hardship; but it would be equally a hardship to make them safe at the expense of Others. The return is considered sufficient, and a peremptory mandamus can not be awarded.