The King against The Marquis of Downshire
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1836 |
| Date | 01 January 1836 |
| Court | Court of the King's Bench |
English Reports Citation: 111 E.R. 950
IN THE COURT OF KING'S BENCH.
S. C. 6 N. & M. 92; 1 H. & W. 673; 5 L. J. M. C. 72. Referred to, Bailey v. Jamieson, 1876, 1 C. P. D. 332.
the king against the marquis of downshire. 1836. Justices in Petty Session having made an order for stopping a highway under a local Act giving an appeal, and the time for appeal having elapsed, it cannot be contended, on a prosecution for obstructing such way, that the order was bad because the justices were not properly summoned to the Petty Session. Under stat. 55 G. 3, c. 68, s. 2, enacting that "when it shall appear, upon the view of any two or more" justices, that a highway is unnecessary, the same may be stopped by order of such justices, the order is not valid if it state only that the justices, having viewed the public roads within the parish, &c. (in which the road lies), and being satisfied that certain roads after mentioned are unnecessary, do order the same to be stopped up: and the objection may be taken on such prosecution, and at such time, as above. By a local Inclosure Act, incorporating (so far as its provisions were not repugnant) the General Inclosure Act, 41 G. 3, sess. 2, c. 109, it was enacted that husband of the said Sarah Newman Bowman, and alleged that they were never married; that the magistrates by the advice of their clerk thereupon refused to enter upon the case, or allow any evidence to be called to prove the marriage, stating that it was necessary in the first place to establish the marriage in the Ecclesiastical Court. That this deponent was prepared to have proved the said marriage," &c. "That this deponent informed the magistrates that he was prepared with such testimony if they would allow it to be heard ; but they positively refused, for the reason before stated, namely, that it was necessary, before such application could be made, to establish the marriage in the Ecclesiastical Court." The clerk to the magistrates stated in his affidavit, that Mr. Saul, the attorney for Wetheral, " proposed to call the said Sarah Newman Ashbridge to prove the marriage, but did not deny the fact of the said receipts having been given, or of the said order of bastardy having been made, whereupon the magistrates, Thomas Atkinson arid John Knubley Wilson, Esquires, under the advice of deponent, refused to receive such evidence, considering it a matter of too great importance to try indirectly the validity of a marriage which was alleged to have taken place out of England, and which they thought ought more properly to be brought before an Ecclesiastical Court than to be decided by magistrates at a Petty Sessions." He added his opinion, that the advice he had given was proper, " and that, if the said magistrates heard the evidence proposed to be offered by the said George Saul, they must still decline making any order upon the summons, on the ground of the doubtful nature of the question as to the validity of the marriage, and the consequent risk to which the magistrates would be exposed by reason thereof." (a) 2 A. & E. 632. S. C., as Hex v. The Justices of Somersetshire, 1 Harr. & Woll. 82. 4 AD. &E. 699. THE KING V. THE MARQUIS OF DOWNSHIRE 951 certain commissioners might set out and appoint highways over the lands to be divided, &c., within the parish of E., or over any of the old inclosed lands in the parish, and divert or stop up any of the present public or private carriage-roads, highways, or footpaths in the parish, observing certain conditions: and that all ways and paths in the parish not so set out or continued should be stopped up and extinguished, and deemed part of the lands to be divided, &c. : provided that no roads through any old inclosures of the parish should be stopped up, diverted, or altered, without an order of two justices. A road, A, through old inclosures in the above parish, opened into the waste, and, at such opening, joined another road, B, which formed a continuation of A, and ran entirely over waste land. No valid order was obtained for stopping road A. Road B was not set out or continued by the commissioners : Held, that this omission did not extinguish road A and create a consequent stoppage of road B; but, on the contrary, that A remaining open for want of an order of justices, as a consequence, B remained open also. Quaere, if a road long used as a thoroughfare by the public be lawfully stopped at one end, whether the right of way over the remainder be gone. Per Patteson J., it is not. [S. C. 6 N. & M. 92 ; 1 H. & W. 673 ; 5 L. J. M. C. 72. Referred to, Bailey v. Jamieson, 1876, 1 C. P. D. 332.] Indictment for obstructing and keeping obstructed divers horse and carriage waysi pack and prime ways, and footpaths in the parish of Easthamnstead, Berks. Plea, not guilty. By order of [699] Parke J.(a) the prosecutor delivered particulars of the ways in question, which were nine in number: seven described generally as highways, and two described as footways. On the trial before Parke J. at the Berkshire Spring Assizes, 1834, the following facts appeared. All the ways were ancient public ways. Highway No. 1 (Bond's Lane), passed through old inclosures, and opened into land which, at the time of making the award after-mentioned, was part of the waste lands in the parish and manor of Easthampstead. Highways 2 and 3, and 4, were continuations of Bond's Lane, passing over lands that were waste at the time last-mentioned. (Highway 3 diverged from highway 2 : Bond's Lane branched into highways 2 and 4.) Highways 5 and 6, the latter being a continuation [700] of 5, passed over lands that were waste at the time last-mentioned ; these highways branched from highway 7, and form a continuation of Hatch's Lane, which was a road passing through old inclosures, and not now in question. Highway 7 passed out of Hatch's Lane, through old inclosures, and formed a continuation of Hatch's Lane to the northward; branching, to the westward, into highway 5. (ft) The order was as follows :- "The King on the prosecution of William Makepeace, against the Marquis of Downshire. "Upon hearing Mr. Mascall, of counsel for the prosecutor, and Mr. Eicharcla, of counsel for the defendant, I do order that, upon production of an affidavit by Mr. Handley " (the defendant's attorney), "that on reading the indictment he is unable to understand all the precise tracks indicted, the attorney or agent for the prosecutor shall, at the costs of the prosecutor, within one week after the delivery of a copy of Mr. Handley's affidavit to Mr. Jeyes" (the attorney for the prosecution), " deliver to the defendant's attorney a particular, in writing, of the several highways, pack, and prime ways, and footways, for the obstruction of which the bill of indictment has been preferred and found ; and that the prosecutor shall be precluded, at the trial of the indictment, from giving evidence respecting any other highways, pack and prime ways, and footways, than those named in the particular. The prosecutor, with his attorney and one surveyor, to be at liberty to go on the premises on some one day, having given the defendant or his attorney two days' previous notice of the time at which they will attend, and doing no unnecessary damage to the premises. Dated the 30th day of January 1834. J. parke." See Rex v. Cunuood, 3 D. & E. 816. 952 THE KING V. THE MARQUIS OF DOWNSHIRB AD. ft E. 701. Footways 1 and 2 passed through old inclosures. By stat. 1 & 2 G. 4, c. 32, private, " for inclosing lands within the manor and parish of Easthampstead, in the county of Berks," after reciting that there were within the said manor and parish certain open and common fields and commons, heaths, and other uninclosed commonable lands and waste grounds, containing in the whole, &o., and that the Marquis of Downshire was lord of the said manor, and as such entitled to the soil of the said commons, heaths and other uninclosed commonable lands and waste grounds, that the marquis and others were intitled respectively to parcels of the said open and common fields, and were or claimed to be entitled to or interested in the herbage upon, and certain rights of common over, the said open and common fields, and common or waste lands, or some part or parts of them; reciting also the General Inclosure Act, 41 G. 3, sess. 2, c. 109 ; and that the estates of the several parties lay intermixed, &c., and that if the common fields, commons, &c., were divided, allotted, and inclosed, they would be of greater value; it was enacted that certain persons should be commissioners for putting the Act in execution in such manner, and with such powers, &c., as were in this Act after [701] contained, and with such of the powers and subject to such of the rules, &c., contained in the recited Act, as were not repugnant to, or altered, or otherwise provided for, by this Act. And by sect. 18 it was enacted (a): "That the said commissioners shall, and they are hereby authorised and required in the first place, before they shall proceed to make any of the divisions and allotments, directed to be made by this Act, to set out and appoint all and every such public carriage roads and highways, in, through, arid over the lands and grounds hereby directed to be divided and allotted, or in, through, and over any of the old inclosed lands or grounds within the said parish, as they shall judge necessary, and to divert, alter, turn or stop up any of the present public or...
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