Barnardiston king b the king and the trustee OF the kingston turnpike vide  ante this matter come on again Mr fazakerly and Mr strange take several  exception to this order make by the justice they say they conceive that the  notice in this case be give too early the justice have no jurisdiction over  this cause nor be there any matter before they till the complaint that be make  the that of July last the notice therefore be not to be regard be give before  that time they say that no oath appear neither to have be make of this notice  and that be another exception to it in all these proceed they apprehend  likewise that notice of itself be not sufficient but there ought to be a  actual summons serve upon the party to attend which be entire omit in this  case another objection to this proceed be that the order be make by the court  of session on the same day in which the complaint be make before they they do  agree if the defendant have appear and answer to the complaint at the time it  be make and the session have be of opinion that their answer be insufficient  that they may have make their order immediate but when the defendant do not  waive that advantage by answer they conceive it be too precipitate a proceed  to pass judgement against the defendant immediate and last they submit it that  the subject matter of the complaint be not within the jurisdiction of the  justice the complaint be of a turnpike erect in the town of Kingston unless  this turnpike be erect in the road lead from London to EastGreenstead it may  as well have be erect in Barnardiston king b er p Northumberland they say they  shall not contend but Kingston be in the road lead from London to  EastGreenstead but this turnpike may have be erect in any part of the town of  Kingston that do not lie within this road so that they apprehend that the  complaint ought to have be make of a turnpike erect in some part of this road  and for these reason they submit it the order shall be quash sergeant wright  argue on the other side to the objection concern the notice he say he  apprehend the notice be well give a notice of a intend appeal a notice of a  intend motion be frequent in experience and by equal reason a notice of a  intend complaint be good to the two next objection for want of a oath appear  of the notice and likewise for want of a summons appear he do agree that if  this have be a conviction the objection will have be fatal but he conceive  that the present Act of parliament be a remedial law a law make to prevent the  abuse of these turnpike upon the public road by which law the justice have  only a power give they to remove the abuse and not to punish the party do it  so that the present act do by the justice can be consider as a conviction but  mere as a order in the case of the queen and cousin Trin Ann a exception be  take to a order of bastardy for there be no Barnardiston king b summons appear  upon the order the court there overrule that exception and their reason for do  so he say accord to his note be that the statute of Elizabeth which the order  be make upon be a remedial law and not a penal one he observe that in that  case the court declare that they will intend the party be summon and therefore  a oath and summons shall be intend to have be make in the present one to the  objection for the order be make upon the same day in which the complaint be he  say it be well know that justice in eire have that power and that justice of  oyer and terminer and gaoldelivery have to this day for which reason he do not  see but the present justice may have do the same even admit that the defendant  have appear and pray a day but when the defendant upon due notice give they do  not appear he conceive they be well justify in make their order at that time  to the last objection he say he apprehend that the word turnpike necessary  import a gate which be erect to take toll at and if the trustee have erect  such gate in any one part of the county the justice of the session have a  power to remove it he do agree that upon the first of these act of parliament  the word be confine in such a manner as that the justice have not this power  but where the turnpike be erect in the road itself the present Act be make to  prevent that inconvenience and by that statute the justice have a power to  remove it in whatever part of the county it be erect Mr fazakerly and Mr  strange argue by way of reply they say that they conceive this adjudication  make by the justice must be consider in the nature of a conviction the  adjudication make by they be that the turnpike shall be abate the turnpike be  as much the property of the trustee as their own house the justice therefore  have by a final adjudication from which there be no appeal take away from the  trustee part of their property and if this be not a conviction they do not  know what be if this be to be consider as a conviction they observe that the  counsel of the other side have admit that the adjudication must be bad for the  want of a summons appear but even admit that this be not to be consider as a  conviction but only as a order yet still they apprehend this must be bad  because the justice have give this special reason for make their order that  the defendant do not appear upon the notice give which show evident that there  be no summons and wherever that be the case that the justice discover  themselves that there be no summons it be impossible that the court can intend  that there be one they observe there have be a doubt make and that a very  great one whether the serve a summons upon the party be sufficient unless he  actual appear upon it for this purpose they cite the case of the king and  Simpson which be a conviction for deerstealing the justice set forth upon that  conviction that the defendant will not appear before they upon that they  appoint a time and place in the summons for his appear several time be it  argue whether that be sufficient at last Barnardiston king b indeed the court  be of opinion that it be but it never be imagine but the serve the party with  a summons be necessary which they submit do not appear to have be do in the  present Barnardiston king b er p case Mr strange then in particular take  notice of the hastiness in the proceed of the justice by their determine this  matter the same day on which the complaint be he say he be of counsel with the  prosecutor in the case of the king and hale which be a indictment of forgery  and try at the old Bailey the defendant there have take a copy of his  indictment he be actual in custody and the prosecutor insist for a trial the  same session in which the bill be find the defendant desire that his trial may  be put off till the next session and the court grant it in the present case Mr  strange say he apprehend unless the court will relieve upon this application  the party be entire without remedy the court he say hardly ever grant a  information against the justice for what they do at a session and the  defendant have offer and do now to try this matter with the prosecutor in a  feign issue but it have be refuse the court declare their opinion in the  present case that the statute which the present proceed be find upon be a  remedial law and not a penal one for which reason they say the present  adjudication be to be consider as a order only and not as a conviction they  agree likewise that as the defendant do not appear at the day which be give  they to desire that the time may be enlarge for their defence the justice be  well warrant in make their order the time they do and far they agree that upon  this second Act of parliament the session have a full authority to inquire  into this turnpike in whatever part of the county it be erect in some other  point they a little vary in their opinion judge page and judge probin think  that where a prisoner be in custody the justice of oyer and terminer and  gaoldelivery have a authority to insist upon the prisoner make his defence on  the same day in which he be indict let his offence be of whatever nature it  will judge lee be of a contrary opinion where the offence be only a  misdemeanour judge page be of opinion that a summons in this case ought to  have issue forth notwithstanding the notice but that it shall be intend such  summons do issue judge probin and judge lee be of opinion in this case that as  the Act have direct that nothing shall be in this road but by the direction of  the trustee the direction which the trustee give shall be consider as a order  that the authority of the justice in their session be not to be consider as a  original jurisdiction but as a jurisdiction upon a appeal that therefore the  notice itself be sufficient and a summons need not be intend however in  whichever light this matter be consider the whole court agree that the order  ought to stand accord discharge the former rule