counsel cannot be heard. Previous to fhewing caufe, it is usual to deliver over the affidavit against the rule to the counsel for the rule, who has a right to make any objection appearing on the face of it, and if a doubt arises, upon the statement of the facts contained in the affidavit, it is infpected by the judges, or read by the officer of the court; when an affidavit has been made ufe of, but not before, it may be filed, in order that, if it be not true, the party may be indicted for perjury. Tidd's Prac. K. B. 15 Vin. 499. (G) Notice. In what Cafes it must be given, and at what Time. I. EVERY notice of motion must be given two days at least before the day on which it is moved; if the motion is to be on Thursday, the notice muft at least be on Tuesday; if on Monday, the notice must be on Friday, Sunday being no day. Maxwell v. Phillips, June 22d, 1801. 2. Notice of motion, given by one not allowed to act as a folicitor, is not good. 3 P. Wms. 103. Ex parte Sir Richard Grof venor. 3. Notice of motion, though feldom neceffary, is frequently given in order to fave time and expence, by affording the adverse party an opportunity of fhewing caufe in the firft inftance, or by inducing the court to difallow the cofts of proceedings taken after the notice, and before the motion. 4. The ftat. 14 G. 2. c. 17. requires notice of motion for judg ment as in cafe of a nonfuit; but in the court of K. B. the rule to fhew caufe is deemed a fufficient notice. Lofft, 65. 5. But it is otherwife in the Common Pleas. Gooch v. Pearson, 1 H. Bl. 527. [G] 15 Vin, 503. A Murder or Mandaughter. (C) By what Persons it may be. Child of ten years of age may be guilty of murder. York's cafe. 1748. Fofter, 70. 1. (D) Of Officers, and Pleadings. QUERE. Whether a woman, who in a tranfport of paffion, kills a peace-officer, who is about to take the man fhe cohabits with to prifon, under a warrant which turns out to be illegal, is guilty of murder or manslaughter. Mary Adey's cafe, Leach's Cr. Caf. 245. 2. To kill a bailiff in the execution of an attachment issued by the county clerk in a cause in which he is plaintiff, is murder, for fuch attachment is legal. Baker's cafe, Ibid. 131. 3. So killing an officer, while he is endeavouring to arrest a man upon a blank warrant, is murder. Ibid. 133..notis. 4. Peace-officers, having a legal warrant to arrest for a breach of the peace, may break open doors, after having given due notice and demanded admittance. Fofter, 136. But they cannot justify breaking open outward doors or windows to execute a civil fuit. Fofter, 319, 320. Cowp. 3. Therefore, where a man, who had been arrefted by the artful contrivance of an officer upon civil procefs (that of the warrant having been filled up after it had been fealed), obliged the officer to decamp by fnapping a pistol at him three times; but the officer returning to the houfe, accompanied by the plaintiff and the attorney, and all three attempting to force in, the man within fired a gun through the door and shot the attorney; it was ruled manslaughter only. 10 State Trials, 452. Foft. 311, 312. 15 Vin. 504 5. If a ftranger feeing a perfon arrested and restrained from his liberty, under colour of a prefs-warrant or civil procefs, &c. by those who in truth have no fuch authority, happen to kill fuch trefpaffer in rescuing the person oppreffed, he thall be adjudged guilty of manslaughter only. Tooley's cafe, Lord Raym. 1296. upon which this cafe was decided are very ftrongly controverted by Mr. Juftice Fofter, p. 315 318. 6. It is fufficient that the procefs is not defective in the frame, and that it iffue in the ordinary courfe, though there was error in the proceedings before: and if the warrant is produced at the trial, the judgment, or decree need not. Per Hardwicke, C. J. Roger's cafe. 1735 7. If the process is defective in the frame, if there is a mistake in the name or addition of the perfon on whom it is to be executed, or if his name, or the name of the officer be inferted without authority, and after iffuing the procefs, or the officer exceeds his authority and is killed, it is only manslaughter in the perfon whofe liberty is invaded. Fofter, 312. 8. If a gaolet carry his prifoner, against his will, who he knows has never had the small-pox, but fears it, to a place where he knows a perfon having it is, and the prifoner catches it, and dies, it is murder. Vide Cartle v. Bambridge, Stra. 854. But the principles 9. If a gaoler (as warden of the Fleet) has a lawful deputy, whofe fervant by duress (of confining in an unwholesome room) kills his prifoner, it is not murder in the principal, though he fometimes acted as warden, and once faw the deceased in the unwholesome room. Rex v. Huggins, Stra. 882. Ld. Raym. 1574. Io. But it is murder in the fervant. Ibid. 11. Perfons having authority to arrest or imprifon, ufing the proper means for that purpofe, and being killed in the struggle, it is murder in all who take part in fuch refiftance. And this will hold in all cafes, whether civil or criminal. Fofter, 270. So in cafe of breach of the peace, or any mifdemeanor fhort of felony. Ibid. 15 Vin. 506. (E) How. By Malice aforethought, and what shall be faid fuch. 1. MALICE aforethought is, when the fact is attended with fuch circumstances as are the ordinary fymptoms of a wicked, depraved, malignant spirit; or an action flowing from a wicked and corrupt motive, a thing done malo animo, mala conscientia. Fofter, C. L. 256. 2. If A. and B. have a fudden quarrel, and blows pafs, and there appears a fufficient time for the parties to have cooled, and afterwards A. kills B., it is murder. Rex v. Oneby, 2 Stra. 765. 3. It is the province of the judge, from the circumstances of the cafe, to determine what is malice, and whether the killer had a fufficient time to cool. Ibid. 4. If A. fay he will avenge himself of B., or that he will have his blood, this is exprefs malice against B., and if a killing ensue it is murder. 2 Stra. 765. 2 Ld. Raym. 1485. 5. If A. and B. play, then wrestle, then cudgel. A. gives B. a smart firoke, B. grows angry, throws away his cudgel, and they fight in earnest, but are parted; A. goes away angry, and threatens to fetch fomething and stick B.; he changes his cloaths, returns with a sword concealed and a cudgel in his hand, draws on a difcourfe of the quarrel, and offers to cudgel if B. will keep off his hands; A. drops the cudgel, which B. takes up, and gives A. two blows on the fhoulders; A. draws out the concealed fword, fays, "ftand off, or I'll ftab you;" thrufts at, but miffes him; B. goes back; A. fhortens his fword, leaps towards B., ftabs him, and he dies. It is murder. Mafon's cafe. 1756. Fofter, 132. 6. So in the cafe of a fudden affray, where no felony is committed nor wound given, if a perfon interpofing to part the combacants, giving notice to them of his friendly intention, fhould be killed by either of the combatants, it would be murder in the perfon fo killing. Fofler, 270.. 7. Whenever it appears that a man killed another, it fhall be intended primâ facie that he did it maliciously, unless he can make out out the contrary, by fhewing that he did it by fudden provocation, 1 Hawk. P. C. 190. 8. A. and B. fuddenly quarrel; upon fome provoking language B. feizes A. by the collar; a fight enfues; they both fall to the ground; and while ftruggling on the ground B. receives a mortal wound from a knife which A. held in his hand. This adjudged manflaughter only. Snow's cafe, Ca. in C. Law, 180. 9. A mother-in-law, on perceiving a fault committed by her daughter-in-law in fome work fhe was doing, throws a child's ftool at her and kills her, and then conceals her death, and hides the body. Quare, Whether it is murder or manslaughter? Hazel's cafe, Ca. in C. Law, 406. (F) How. By Intention to do a less Mischief only. 15Vin. 508. i. 1. WHEREVER a perfon, in cool blood, by way of revenge, unlawfully and deliberately beats another in fuch a manner that he afterwards dies thereof, he is guilty of murder, however unwilling he might have been to have gone fo far. P. C. 194. 2 Stra. 771. 1 Hawk. 2. If a gaoler confine his prifoner against his will in an unwholesome room without allowing him the neceffaries of a chamber pot, &c. whereby he contracts a distemper by which he dies, this is murder by durefs in the party doing it. Rex v. Huggins, 2 Stra. 882. If the verdict be, that the principal gaoler knew the condition of the room, and that within 15 days of the death he was prefent, with his deputy, and "faw the deceased under the "durefs of the faid imprisonment," fufficient facts are not found to amount to murder. Ibid. (G) How. Without Intention, but in doing an un- 15Vin. 508. lawful Att, or an Act not warranted by Law. "To render the killing murder in all those who affembled to do an unlawful act, it must appear that it was committed in profecution of fome unlawful purpofe: thus, fmugglers affemble to run wool, officers oppofe, a fmuggler fires a gun, and kills another fmuggler: if it does not appear it was levelled at the officers, the other smugglers prefent are not guilty, for it does not appear it was in profecution of the purpofe for which they affembled. Plummer's cafe, Fofter, 352. 2. Three foldiers go to rob an orchard, two get up the tree, the third ftands at the gate with a drawn fword, the owner's fon comes and feizes him, he stabs him: those in the tree not guilty; otherwife had they come with a general resolution against all opposers. Per Holt, Fofter, 353. 3. If one ride among a multitude with an horse used to kicking, and death enfues, it is murder. N. P. C. 44. VOL. V. U 4. If 4. If a man, duped, and encouraged by a concourfe of people, throw a pick-pocket into a pond adjoining the road, to revenge the theft by ducking him, but without any apparent intention to take away his life, and the pick-pocket be drowned, it is manslaughter only. Old Bailey. 1785. 1 Hawk. P. C. 193. 5. The defendant came to town in a chaife, and before he got out of it, he fired his piftol, which by accident killed a woman; and King, C. J. of C. B. ruled it to be but manflaughter. Rex v. Burton, Stra. 481. 6. If A. carry his prifoner B. against his will to a house where he knows the small-pox is, and that B. has not had it, or detains him when he defires to be removed, and B. catch it and die thereby, it is murder in A. Caftell v. Bambridge et Corbett, 2 Stra. 853. 7. Accidental homicide may be murder, if it happen in the profecution of an illegal act. Hodgson's cafe, Ca. Cr. Law, 7. 15 Vin. 509. (I) How. By or of one interpofing, where two are fighting or quarrelling. IF Fa ftranger interpofe to part combatants in an affray, giving notice to them of that intention, and they affault him, and in the fruggle he fhould chance to kill, this would be justifiable homicide; for it is every man's duty to interpofe for the prefervation of the public peace, and the prevention of mischief. Foster, 272. 15Vin 512. (N) How. By Quarrels and Provocations, and what fhall be faid fuch. I. W Vide the cafe mai flaughter. Rex v. Taylor, 5 Burr. 2793. of Rex v. John Brown, for the murder of J. Maccafter, June 1776. Cafes in C. L. 176. And the cafe of the King v. Snow, tried before Willes, J. Sum. Aff. Northampton, 1786. Cafes in C. L. 180. 2. In every cafe of homicide upon provocation, how great foever it be, if there is a fufficient time for paflion to fubfide, and for |