case cook case see Harvey v Harvey Ch d to kill a sheriff officer voluntary  while be be attempt to break into a house for the purpose of execute civil  process be manslaughter and not murder for it be not lawful to break open door  for such purpose and every man have a right to defend his own house ante W  Jones sum hale hale   Mod ld ray foster saint Tr Cowper hawk p c hawk p c ch  Bl Com if a man intend to kill a thief or a house breaker in his own house  happen by mistake to kill one of his own family it can be impute to he as a  criminal action cook be indict for the murder of marshal upon his arraignment  he plead not guilty and it be find that the say marshal be a bailiff to the  sheriff of Somerset and have several warrant upon several capias ad to give  satisfaction against the say cook and his father direct to he and other  bailiff and that they by virtue or colour thereof enter into the say cook  stable and outhouse and hide themselves there all night and at eight of the  clock the next morning come to cook dwellinghouse and call he to open his door  and stiff they to enter because they have such warrant upon such writ at the  suit of such person to arrest he and will he to obey they but the say cook  command they to depart tell they they shall not enter and thereupon they break  a window and afterward come to the door of the say house and offer to force  that open and break one of the hinge thereof whereupon the say cook discharge  his musquet at the say marshal and stroke he of which stroke the day follow he  die the doubt be whether upon all this matter he be guilty of murder or of  manslaughter and it be now argue by roll for cook that it be not murder for  although a bailiff be slay yet it be by his own procurement in do a unlawful  act videlicet in break the window and door and attempt to enter and serve  process which be not lawful for a personal duty unless in the king case and  for that purpose he cite   b Seamains case Edward croak car and after argument  at the bar all the justice seriatim deliver their opinion that it be not  murder but manslaughter only for although he kill a bailiff yet he kill he not  in duly execute process for it be not murder unless there be ill will  praecogitata or ill will be intimately associated as to murder one sudden or  in resistance of a officer do his office but that last ought to be where he be  daily execute his office by serve the process of law wherein he be assist cum  potestate king et law but here this bailiff be slay in do a unlawful act in  seek to break open the house to execute process for a subject which he ought  not to do by the law and although he may have enter if the door have be open  and arrest the party and it have be lawful yet he ought not to break open the  house for that croak car er p be not warrant by law a and especial lie there  in the night and in the morning break the window and offer to force the door  which be not sufferable for under colour thereof one may enter who have not  any such authority and every one be to defend his own house yet they all hold  that it be manslaughter for he may have resist he without kill he and when he  see he and shoot voluntary at he it be manslaughter but Jones say that it be  resolve by the chief justice and himself and the recorder of London at the  last session at Newgate in the case of one William Levett who be indict of the  homicide of a woman call Frances freeman where it be find by special verdict  that the say Levett and his wife be in the night in bed and asleep one Martha  Stapleton their servant have procure the say Frances freeman to help her about  housebusiness about twelve of the clock at night go to the door to let out the  say Frances freeman conceive she beard thief at the door offer to break they  open whereupon she in fear run to her master and mistress and inform they she  be in doubt that thief be break open the housedoor upon that he arise sudden  and fetch a draw rapier and the say Martha Stapleton lest her master and  mistress shall see the say Frances freeman hide her in the buttery and the say  Levett and Helen his wife come down he with his sword search the entry for the  thief and she the say Helen espy in the buttery the say Frances freeman who  she know not conceive she have be a thief cry to her husband in great fear say  to he here the be that will undo we thereupon the say William Levett not know  the say Frances to be there in the buttery hasty enter therein with his draw  rapier and be in the dark and thrust with his rapier before he thrust the say  Frances under the leave breast give to her a mortal will whereof she instant  die and whether it be manslaughter they pray the discretion of the Court And  it be resolve that it be not for he do it ignorant without intention of hurt  to the say Frances and it be there so resolve croak car but here they hold  clear that it be manslaughter because be see and know he shoot at he voluntary  and slay he whereupon they all resolve it be not murder but homicide only vide  Edward pl Edward pl but to execute a capias utlagatum the house of the outlaw  it be say may be break open hale   Bulst more Leon Bac ab