Barnardiston king b the king and dr EARBURY vide ante Mr Josling move that a  certain recognizance by which the defendant be bind to appear in this court  may be take off the file that so much of a rule of this court as relate to the  defendant appear to this recognizance may be discharge that the defendant  paper seize by virtue of a warrant from one of the secretary of state may be  restore to he and that a satisfaction may be award to he for the imprisonment  he suffer under this warrant he take notice that some time before the  beginning of last Michaelmas term a warrant be issue forth in the name of the  duke of Newcastle one of the secretary of state which be direct to two of the  king messenger require they take a constable to their assistance to make  diligent search in the house of the defendant the author of a treasonable  paper entitle the royal oak journal for all paper of what kind soever in his  custody and to bring the say defendant with the say paper before he the  messenger without take a constable to their assistance enter into the  defendant house seize his paper and bring they together with the defendant  before Mr de la say who be the duke of newcastle secretary and a justice of  peace No one be examine by Mr de la say to prove the defendant to be the  author of this paper nor do the defendant confess it however Mr de la faith  tell the defendant he must commit he if he do not enter into a recognizance in  the sum of pound with two sufficient bail condition for his appearance in the  court of king bench the first day of last Michaelmas term and not depart the  court without licence to avoid be commit the defendant with two sufficient  bail enter into such recognizance and the recognizance be sign Ch de la say  the defendant appear in the court of king bench on the first and last day of  last Michaelmas term and on the first and last day of the three follow term  but on the last day of Trinity term last as soon as he have move to have his  appearance record he pray to be discharge upon this the attorney general  exhibit two information against he in open court and move that he may be  charge with they Mr masterman accord demand of the defendant whether he appear  to they the defendant do not by any open act either assent or dissent to the  question demand of he but insist that the recognizance by which he be bind  over to this court be illegal and that he ought to be discharge from it the  court tell he that they can not discharge his recognizance upon that he go out  of court and the officer record his appearance to the information this Mr  Josling say be the state of the fact and upon this state of it he apprehend  that his motion be regular he say he shall not contend but it have be resolve  that a secretary of state warrant to seize a person suspect of treasonable  practice be legal but this resolution be but a Barnardiston king b late one  find only upon precedent and not one ancient resolution in the book to justify  it however it never be yet resolve that a secretary of state can grant a  warrant to seize a person paper and it manifest be against the right and  liberty of the subject as the warrant itself be illegal so be the execution of  it likewise for it be do without the assistance of a constable and the  defendant not bring before the secretary of state himself as the warrant  direct but a secretary under he he then object to the recognizance he say he  shall not contend but there be precedent to justify a justice of peace in bind  a man over to this court but there be not one resolution in the book ancient  or modern to justify such a practice a justice of peace have a jurisdiction  which be confine within the bind of his county and it will be a matter very  inconvenient to the subject if it shall once be settle for law that a justice  of peace in Cumberland may bind a man over to this court sit at Westminster  the manner of take the present recognizance be illegal too in as much as there  be the oath of no one nor the confession of the party at the time it be  require of he the form of it be likewise bad for the defendant be bind over to  appear at the court of king bench at Westminster whereas the style of this  court be in person ring wherever it be not insert in the recognizance for what  cause he be to appear the recognizance be sign too Ch de la say so that the  Christian name of de la say be imperfect set out and it no where appear in the  recognizance Barnardiston king b er p that he be a justice of peace Mr Josling  then speak to the appearance of the defendant and submit it in the first place  that the defendant in fact do not appear to these information and in the next  place that he legal can not he do agree that when the question be ask the  defendant whether he appear he do not in word direct refuse it but he contend  that the recognizance by which he be bring into court be illegal which be the  same thing as if he have in word direct contend that he be not oblige to  appear he submit it therefore that when the officer of the court demand of the  party whether he appear the party insist that he be not bind to appear the  court tell he that he be bind to appear and if he do not his recognizance will  be forfeit the party upon that go out of court that may as well be construe a  departure without licence as a appearance for which reason with regard to the  fact he submit it the officer do wrong in record that the defendant do appear  to these information bat suppose the fact to be that he do submit to appear  yet as the recognizance which be in the nature of a process to bring the party  in to appear be illegal for the reason he have before give he conceive that  the appearance can not be legal neither and for authority to support the  several part of his argument he cite godb h archbishop of Canterbury case  James side Lut h lamb Cr the chief justice say that in the case of Kendal and  Boo it be settle upon solemn debate that a secretary Barnardiston king b of  state may issue out his warrant to apprehend the person of any man on  suspicion of treasonable practice and therefore do not think that that part of  the present warrant will have be dispute at this day as to the other part of  it with regard to seize the defendant paper he will not give a opinion whether  it be legal or not this court can not make a rule upon the messenger that do  seize they to restore they and therefore that question be not proper before  the court for their determination there be no occasion to determine neither  whether in general justice of peace have authority to bind over to this court  the person that do this in the present case be a justice of peace for the  county of Middlesex and undoubted he may bind over to this court this court  have a jurisdiction of oyer and terminer for that county however he have  before he several precedent of justice of peace of other county bind over to  this court likewise he have likewise before he several precedent of  recognizance take by judge of this court and justice of peace wherein the  style of their authority be not insert he have see several too which be only  in this general form ad to answer c and as to the other exception with regard  to the form of this recognizance if there be any weight in they the defendant  may have take advantage of they if a to know facias have be bring upon it but  what the defendant have do have in judgement of law amount to a appearance and  as that be so all defect in the recognizance be thereby cure for this purpose  the chief justice mention the case of Widrington and Charlton Trin Ann that be  a appeal of murder the defendant do not appear till the exigent and when he do  appear his appearance be enter in the most cautious manner that can be for it  be in these word et prediction defendens friends are living Himself omnibus  advantagiis exception tam ad breve originate how ad process go for sale and  thereupon for fault in the exigent demurrer Lord Macclesfield Mr justice eyres  and Mr justice powis hold that all defect in process be cure by the party  appearance Mr justice Powel indeed be of another opinion as this be a writ of  appeal but agree such defect will have be cure by appearance in every other  action the rest of the court agree with the chief justice in the present case  accord the motion be disallow of