The Queen against The Inhabitants of Hickling
| Jurisdiction | England & Wales |
| Judgment Date | 27 June 1845 |
| Date | 27 June 1845 |
| Court | Court of the Queen's Bench |
English Reports Citation: 115 E.R. 719
QUEEN'S BENCH
S. C. 14 L. J. M. C. 177; 9 Jur. 1075.
[880] The queen against the inhabitants of higkling. Friday, June 27th, 1845. By stat. 34 G-. 3, c. 64, when the boundary of two parishes lay along the centre of a highway, justices were empowered, on information of the fact, to summon the surveyors of the respective parishes, hear the parties and their witnesses, and finally determine the matter by order, apportioning the highway between the parishes for the purpose of repair. Forms of information, summons and order were given. By an order under this Act, the justices recited an information laid before them that one side of a certain highway was in, and repairable by, parish H,, and the other aide in, and repairable by, parish W., praying an apportionment; that they had summoned the surveyors, who attended, and that they had examined witnesses: and they ordered that the highway should be apportioned between H. & W., dividing it by a transverse line. The order contained no direct finding that the sides of the highway were respectively in H. and W.; but the statute form was correctly followed. On indictment for non-repair of the part allotted to H., Held, that the justices must be taken to have considered the question, whether or not part of the highway was in H., and to have decided by their order that it was; atid that the fact could not be questioned on trial of an indictment, the subject matter being within the jurisdiction of the justices, and their finding of the fact conclusive. (See a further note at p. 890.) An order directing an indictment for non-repair of a road, under stat. 5 & 6 W. 4, c, 50, ss. 94, 95, must shew, on the face of it, that it was made at a Special Session for the highways held within the division in which the road is situate. If it do not, it is void ; and an order for costs, made, under s. 95, by the Judge who tried the cause, will be set aside. [S. C. 14 L. J. M. C. 177 ; 9 Jur. 1075.] Indictment for not repairing a highway. The first count stated that there was a highway leading from Newark to Leicester, called the Foss Eoad, used by and for all the liege subjects, &c., with their horses, coaches, carts, &c.; and it then described a part of the said highway between certain termini, in length 858 yards, and in breadth 20, one side of which part, being the east side thereof, adjoining to the said parish of Hickling, lay within that parish, and the other, being the west side thereof, adjoining to the parish of Widmerpool, lay within the latter parish. The count then stated an order of justices, made, August 3d, 1816, under stat. 34 (t. 3, c. 64, s. 1 (a)2, appor- (d)1 See Sanders v. Cwoard, 15 M. & W. 48, 51, 53, 54, and the authorities there referred to. (0)s Stat. 34 G. 3, c. 64 (repealed by stat. 5 & 6 W. 4, c. 50, s. 1), recites, in sect, 1, that the common highways in this kingdom are repairable by the inhabitants of. the parishes in which they are situate, "but it frequently happens that the, 720 THE QUEEN V. HICKLING 7 Q. B. 881. tioning the 858 yards for [881] the purpose of repair, and allotting part to the pariah of Hickling, whereby, and by force of the statute, the said parish of Hickling became and was, and is, bound [882] as of common right to maintain, &c. the part of the said boundaries of such parishes pass through the middle of such common highways, and one side of such highways is situated in one parish, and the other side of such highways is situated in another parish, whereby great inconveniencies have often arisen to such parishes," &c.: and it enacts, for remedy thereof, "That it shall and may be lawful for any two justices of the peace for any county, riding, or division, upon complaint or application to them by any surveyor, or any one of the surveyors of the highways of any parish (stating to such justices in writing, and by a plan thereunto annexed, that there is situated in the said parish, and also in some other parish adjoining thereto, specifying the same, a certain common highway, particularly describing the same by metes, bounds, and admeasurement thereof, one side of which common highway, ought to be made or repaired by one of such parishes, and the other side thereof by the other of such parishes), to issue their summons, with a copy of such writing and plan thereunto annexed, to the surveyor or one of the surveyors of the highways of such other parish, to appear before them on a day to be mentioned in such summons, not more than fourteen days, nor less than seven days from the day of the date of such summons; and that in case the parties shall then appear before such justices, they may then proceed finally to decide the matter in the manner hereinafter mentioned, in case all the parties shall consent thereto; but in case," &o., provision for...
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