Maddox v. Ewell , 2 Va. 59 ( 1817 )

Adjourned Case from the Superior Court of Prince William. Charles Ewell moved the County Court, and obtained an order appointing sundry persons to view a way for opening a Road from Charles Ewell’s mill to the mouth of Colonel Alexander’s and Richard Brent’s lane, and to report to Court the conveniences and inconveniences of the same : the order also directed them to be sworn before they made the view.

The viewers were sworn by Gerard Alexander, acting as Justice of the Peace, and who was Coroner of the county.

On the report of the Viewers, a Writ of ad quod damnum was awarded, which was regularly executed, the Inquisition returned to the Court, and an order entered establishing the road according to the report of the Viewers. John Maddox, who had been regularly made party to the proceedings, and on whose land the road in part run, appealed from the decision of the Superior Court.

There were two questions adjourned by that Court to this. 1. Whether the Appel-lee Charles Ewell did obtain, of right, the order for viewing a road, which is the foundation of all the proceedings in this Case. 2. Whether Gerard Alexander, who administered the oath to the Viewers, was disqualified from acting as a Justice of the Peace, by reason of his having theretofore accepted, and then actually holding a commission as Coroner of Prince William county, no legal proceedings having ever been instituted to vacate the said Alexander’s commission as Justice of the Peace.

The following was entered as the judgment of the Court:

“ The Court is of opinion, and doth decide, that the Appellee Charles Ewell, might well obtain the order for viewing the road in the proceedings mentioned: ^(a) and, *not deciding whether Gerard Alexander, who administered the oath to the Viewers, did forfeit his office of Justice of the Peace by accepting the commission of Coroner of the county of Prince William, is unanimously of opinion, and doth decide, that the said Alexander’s acceptance of the Coroner’s commission, does not vacate such of his subsequent acts as a Justice of the Peace, as were or may be performed before his disqualification (if it existed,) had been or shall be established by some proper Judicial proceeding for that purpose instituted.”

(a) See 1 Rev. Code of 1792, ch. 19,11, by which, any person may mate application to a County Court to ■ have a road opened for the convenience of travel-ling to mills, &c. and the Court shall thereupon appoint Viewers, &c.