MacKalley's case in the kill of the sergeant of London by command from the  king all the judge of England be command to meet together to resolve what the  law be upon a record of a special verdict find at the session of gaol delivery  hold at Newgate the five day of December year  James and accord all the judge  of England and baron of the exchequer in the beginning of Hilary term last  pass meet together and hear counsel learned upon the same special verdict as  well of the prisoner of the king that be to say sergeant Harris the young  Anthony diet and Randall crew of counsel with the prisoner and Yelverton  Walters and Coventry for the king and the matter be very well argue by Council  on both side at two several day in the same term and diverse exception be take  to the indictment and to the verdict also first against the indictment five  exception be take because it appear that the arrest be tortuous and by  consequence the kill of the sergeant can not be murder but manslaughter and  they argue that the arrest allege in the indictment be tortuous because it be  in the night that be to say diem Nov inter horas quint et Sextus  post noon  which appear to the court to be in the night and the night be a time of rest  and repose and not to arrest any one by his body for thereof will ensue as in  hoc cause to fall upon bloodshed for the officer and minister of justice can  have such assistance nor the peace can be so well keep in the night that be to  say in darkness  as in the day in area free from obstacles luce and the  prisoner can know the officer or minister of justice in the night nor the  prisoner can so soon find surety for his appearance in the night and thereby  avoid his imprisonment as he may in the day time and they cite h that the lord  shall not distrain for his rend or service in the night but it be answer by  the Council with the king and in the end resolve by all the judge and baron of  the exchequer that the arrest in the night be lawful as well at the subject  suit as at the king suit for the officer or minister of justice ought for to  arrest he when he can find he for otherwise perhaps he shall never arrest he  because who male stir about hate light and if the officer do not arrest he  when he find he and may arrest he thePlaintif shall have a action upon his  case and recover all his loss and damage and it be like to the case of  distress for damage pheasant for which one may distrain in the night for  otherwise perhaps he shall never distrain the cattle for they may be take or  escape away and then he can distrain they but in the case of rend service it  be otherwise for the law do intend that the tenant will all the day attend  upon the land to pay his rend but he be not compellable to attend in the night  Vid h a e e distress and no inconvenience will follow upon it for although he  can see the officer yet when he hear he say I arrest you in the king name c he  ought for to obey he and if the officer have not a lawful warrant he shall  have his action of false imprisonment and as to the find of surety the law be  that he ought to remain in prison till he find surety be it in the day time or  in the night but great inconvenience will follow on the other side if those  who be indebt to other shall in the night go at their pleasure without danger  of arrest for then they will become Nightwalkers and turn the day into night  in despite of their creditor and as the officer or minister of justice may by  force of a warrant direct to he arrest anyone at the king suit either for  felony or other crime in the night so may he do at a subject suit for the king  have no more prerogative as to the time to make a arrest than a subject for  the arrest be to no other but to the intent to bring the party to justice and  it appear by the opinion of the court in the king bench in Semaigns case in  the five part of my report that the sheriff may arrest in the night as well at  the suit of the subject as at the king suit and in Heydons case in the four  part of my report it be resolve that if one kill a watchman in do his office  it be murder and yet it be do in the night and if a affray be make in the  night and the constable or any other who come to aid he to keep the peace be  kill the same be murder for when the constable do command they in the king  name to keep the peace although he can discern or know he to be the constable  yet at their peril they ought to obey he it be also resolve that although in  truth between five and six of the clock in the nine of November be part of the  night yet the court be not bind ex duty to take knowledge ofit nomore than in  the case of burglary without these word in night  the same a day or Noctanter  it be object that Sunday be not die assize towns and therefore no arrest can  be make thereon but the same be the sabbath and therefore therein every one  ought to abstain from secular affair for the better worship and service of God  in spirit and truth as to that it be answer and resolve that no judicial act  ought to be do on that day but ministerial act may be lawful execute on the  Sunday for otherwise peradventure they shall never be execute and God permit  thing of necessity to be do that day and Christ say in the gospel good be  benefacer in Sabbatho another exception be take because it be say in the  beginning of the indictment in senate speech dom Reg in computatorio his  scituat in parish saint michaelis in Woodstreet London and do not show in what  ward the say parish be et non allocatur for it be hold in h b every ward in  London be a hundred in a county and every parish in London be as a town in a  hundred and it be not necessary to set forth in what hundred a town no more in  what ward a parish be but the same be common aver because that there be  diverse parish in London of one name and the ward be add to make distinction  of one parish from another for which cause it be resolve that in the case at  bar the indictment be sufficient notwithstanding the leave out of the ward for  it do not appear to we that there be any other parish of that name and this  parish be particular describe videlicet in parish consecrated Michael in wood  street London and therewith agree the rule of the book in h b for a bill be  rule good in parish consecrated laurentii in Judaismo omit the ward the four  exception be because it do not appear in what parish the sheriff do command  fall the sergeant to arrest the defendant and the same be disallow by all the  justice for the word of the indictment be in such a manner  in  by the same route senate process to be c and by the same route senate full  show that the warrant be make at the same court mention before and the same be  express allege to be hold in parish consecrated michaelis c it be except  against the indictment videlicet that the precept be to arrest the defendant  si invention foret infra freedom community pillage and the indictment be quoth  in parish S Martini bowyer row in warda de Farringdon infra londinum pillage  the sergeant arrest he so that he have not pursue the precept for the precept  be infra freedom London and notwithstanding that the indictment be resolve to  be good for the say parish and ward in London shall be intend to be within the  liberty of London for these word liberty of London be more spacious than  London and include in they the city of London itself and exception be take to  the verdict that there be materialvariance betwixt the indictment and the  verdict for the indictment do suppose that piot sheriff of London upon a  plaint enter make a precept to fall sergeant at mace to arrest the say  MacKalley the Def by the verdict it appear that there be not any such precept  make but that by the custom of London after the plaint enter any sergeant ex  duty at the request of the plaintiff may arrest the defendant without  to some place  teaching over as far as well aliter so that the indictment be  special to make this offence murder by construction of law upon the special  matter without any forethink malice ought to be follow and prove in evidence  which be not do in this case and because the juror have not find the say  special matter contain in the indictment but other matter judgement can be  give against the prisoner upon this indictment to which it be answer and in  the end resolve that there be sufficient matter in the verdict pursuant to the  matter contain in the indictment upon which the court ought to give judgement  of death against the say prisoner notwithstanding the say variance and that  for two cause because that the warrant which the sergeant have to arrest the  defendant be but circumstance and be not necessary to be precise pursue in  evidence to be find by the jury but it suffice if the substance of the matter  be find without any such precise regard to circumstance and therefore if a man  be indict that he with a dagger give another a mortal wound upon which he die  and in evidence it be prove that he give the wound with a sword rapier baston  or bill in that case the defendant ought to be find guilty for the substance  of the matter be that the party indict have give he a mortal wound whereof he  die and the circumstance of the manner of the weapon be not material in case  of indictment and yet such circumstance ought not to be omit but some weapon  ought to be mention in the indictment so if a b and c be indict for kill I S  and that a strike he and that the other be present procure abet c and upon the  evidence it appear that b strike he and that a and c be present c in this case  the indictment be not pursue in the circumstance and yet it be sufficient to  maintain the indictment for the evidence do agree with the effect of the  indictment and so the variance from the circumstance of the indictment be not  material for it shall be adjudge in law the stroke of every of they and be as  strong the act of the other as if they all three have hold the weapon c and  have altogether strock the dead and therewith agree blow come a so if one be  indict of the murder of another upon forethink malice and he be find guilty of  manslaughter he shall have judgement upon this verdict for the kill be the  substance and the pretence malice the manner of it and when the matter be find  judgement shall be give thereupon although the manner be not precise pursue  and therewith agree blow come where it be say when the substance of the act  and the manner of the act be put in issue together the jury find the substance  and not the manner judgement shall be give for the substance and I move all  the judge and baron if in this case of kill of a minister of justice in the  execution of his office the indictment may have be general know that the  prisoner felon voluntary et ex ill will to sew proecogitata c percusser c  without allege any special matter and I conceive that it may well be for the  evidence will well maintain the indictment for as much as in this case the law  do imply forethink malice as if a thief who offer to rob a true man kill he in  resist the thief the same be murder of forethink malice or if one kill another  without provocation and without any forethink malice which can be prove the  law will adjudge the same murder and imply malice for by the law of God every  one ought to be in love and charity with all man and therefore when he kill  another without provocation the law imply malice and in both these case they  may be indict general that they kill of forethink malice for malice imply by  law give in evidence be sufficient to maintain the general indictment so in  the case at bar and in this case of a sergeant the indictment may have be  general that he felonious and of his forethink malice kill the say fall and  the special matter may well have be give in evidence quoth to be concession by  all the judge and baron of the exchequer the second reason be because it be  express allege in the indictment that the say John Mackalley c the same  richardum fall c felon voluntary et ex ill will to sew praecogita c percussi  et inforavit c so that above the special matter which imply malice it be  express contain in the indictment that he felonious and ex ill will  proecogitata kill the say fall and then although the special matter give in  evidence have vary in substance from the special matter contain in the  indictment yet for as much as it be resolve that the indictment in this case  may be general for this cause the evidence although it do not agree with the  special matter yet it prove that the prisoner kill the say fall of their  forethink malice and so well maintain the indictment and that in the end be  the opinion of all the judge and baron of the exchequer exception be take to  the verdict that the custom find by the jury that after the plaint enter the  defendant may be arrest by his body be against law because the defendant ought  to be first summon before that the warrant in nature of a capias can issue  forth for his body shall not be arrest if he have sufficient et non allocatur  for it appear by the book in e b that by common experience daily use that  after a plaint enter by the custom of London which be establish and confirm by  parliament the defendant may be arrest and in this case three point be resolve  by all the judge and baron of the exchequer that although the process be  apparent erroneous that yet if the minister of justice in the execution  thereof be kill the same be murder for the minister be not bind to dispute the  authority of the court which award the process but his office be to execute  the process and therefore if a capias in a action of debt be award against a  baron or other Peer of the realm which be erroneous because their body by the  law be privilege in such case yet if the officer be kill in execution thereof  it be murder so if a capias be award where a distress ought to issue and in  execution thereof the officer be kill it be murder for as the sheriff c when  he be charge with a escape shall not take advantage of any error in the  proceed so the defendant when he kill the sheriff c shall not take advantage  of error in the proceed it be resolve that if any magistrate or minister of  justice in execution of their office or in keep of the peace accord to the  duty of his office be kill it be murder for their contempt and disobedience to  the king and to the law for it be contra power king et law and therefore if a  sheriff justice of peace chief constable petit constable watchman or any of  the king minister or any who come in their aid be kill in do of their office  it be murder for the cause aforesaid for when the officer or king minister by  process of law be it erroneous or not arrest one in the king name or require  the breaker of the peace to keep the peace in the king name and they  notwithstanding disobey the arrest or commandment in the king name and kill  the officer or the king minister reason require that this kill and slay shall  be a offence in a high nature than any offence of this nature and that the  same be voluntary felonious and murder of forethink malice and a watchman by  the law may arrest a night walker Henry and if a watchman arrest such a one  and he kill he the same be murder vide Heydons case in the four part of my  report and it be true that the life of a man be much favour in law but the  life of the law it self which protect all in peace and safety ought to be  morefavoured and the execution of the process of law and of the office of  conservator of the peace be the soul and life of the law and the mean by which  justice be administer and the peace of the realm keep vide r if the principal  be erroneous attaint the accessary shall be put to answer and shall not take  benefit for the save of his life of the erroneous proceed against the  principal it be resolve that the officer or minister of the law in the  execution of his office if he be resist or assault be not bind to fly to the  wall c as other subject be for law minister non holding in execution duty  to flee seu to go back it be object that the defendant ought not have be  arrest before that the plaint be enter of record in the court before the  sheriff for this same be in truth the court of record where the declaration  and plead shall be to that it be answer and resolve by all that after the  plaint enter in the porter book and before the entry thereof in the court  before the sheriff the defendant may be arrest by the custom of London and  therewith agree the book in e in the point vide e b it be object that the say  arrest find by the verdict be not lawful for the sergeant in this case ought  to have when he arrest he show at who suit out of which court and for what  cause he make the arrest and in what court the same be returnable to the  intent that if it be for any execution he may pay the money and free his body  and if it be upon mean process either to agree with the party to put in bail  accord to the law and to know when he shall appear as it be resolve in the  countess of Rutland case in the six part of my report but in the case at bar  the sergeant say nothing but I arrest you in the king name at the suit of mr  Radford and so the arrest not lawful and by consequence the offence be not  murder to that it be answer and resolve that it be true that it be hold in the  countess of Rutland case that the sheriff or sergeant ought upon the arrest  show at who suit c but the same be to be intend when the party arrest submit  himself to the arrest and not when the party as in this case Murray do make  resistance and interrupt he and before he can speak all his word he be by they  mortal wound and murder in which case the prisoner shall not take advantage of  their own wrong it be also resolve that if one know that the sheriff c have  process to arrest he and the sheriff come to arrest he the defendant to  prevent the sheriff to arrest he kill he with a gun or any other engine or  weapon before any arrest make the same be murder a strong in the case at bar  when he know by the say word that the sergeant come to arrest he exception be  take because it be not find by the verdict that the say Mackalley felon  percussi c but percussi only et quoth the same Johann Murray et Johannes  English to be present circumstance to give help c and do not say felon et non  allocatur for the office of the jury be to show the truth of the fact and to  leave the judgement of the law to the court but they have well conclude and if  super all mother pillage to see justice et cur hic quoth pillage slaughter dic  Richard fall sit murdrum tunc Jurat pillage dic super sacrament suum quoth  pillage Johannes Murray Johannes Mackalley et Johannes English are  worthy of blame et who the dawn be worthy of blame de murdro pillage Richard  fall modus et form prout per Indictamentum pillage to put below c and because  the judge and the court have resolve upon the special matter that it be murder  the jury have find he guilty of murder contain in the indictment it be object  that the sergeant at the time nor before he arrest show the prisoner his mace  for thereby he be know to be the minister of the law and from thence he have  his name sure to be a servant and doorkey et non allocatur for two cause  because the jury have find that he be to be a servant and doorkey speech  viscount et to swear falsely et a becoming acquainted with et minister cur and  a bailiff swear and know needs not although the party demand it show his  warrant nor any other special bailiff be not bind to show his warrant without  demand of it e h b h and where the book speak of a know bailiff it be not  requisite that he be know to the party who be to be arrest but if he be common  know it be suffice if notice be requisite he give sufficient notice when he  say I arrest you in the king name c and the party at his peril ought to obey  he and if he have no lawful warrant he may have his action of false  imprisonment so that in this case without question the sergeant needs not to  show his mace and if they shall be drive to show their mace it shall be a  warning for the party arrest to fly another exception be take to the verdict  because the custom which give to the sergeant warrant to arrest be not pursue  for the custom be quoth largely mask to step out to be a servant and doorkey  and requisitionem birth hujusmodi complaint such to lift up c use to be  arrestare which ought to be take that the pleint ought to be enter before the  request but afterward it be find that the request be before the pleint and so  the custom not pursue et non allocatur for by the custom it be not prove but  that the request may be as well before as after the pleint enter and so be the  common usage and experience it be object that the verdict be repugnant in  itself for first they find that the pleint be enter de Recordo in rot cur  computator in his word die Sabbathi die novemb and afterward they find quoth  intratio pillage in rot cur pillage fanctam to be die Lunae die November c and  the jury can find any thing against the record itself vide h h ass e h h h e  judgement dyer Elizabeth c and all that be affirm for good law but that make  the case strong against the prisoner for now the judge ought to judge upon a  pleint enter of record in Cur computator the Saturday the seventeenth of  novemb which be before the arrest exception be take to the verdict that the  entry of the pleint be without from and so short and obscure quoth opus be  interpret et non allocatur for it be find that it be accord to the custom of  London which be but a remembrance to draw the declaration at length in the  court of plea which notwithstanding be by custom sufficient to have the  defendant arrest and afterward at the session of Newgate hold the five day of  may after this term the two chief justice open declare the resolution of all  the judge and baron of the exchequer to the great satisfaction and contentment  of all there present and accord judgement of deathwasgiven against the three  prisoner by the recorder of London in the presence of the say two chief  justice and the say Mackalley be execute with other prisoner at tyborn