Dom. Rex v. Gay

1 Super. Ct. Jud. 91

Opinion

Warrant not admitted, (⁵) 3 Judges against it, 2 doubtful. In Consequence of this,

Defendant acquitted.

N. B.

N. B. Mr. Thacher says that in a Case at Barnstable (Mayhew Wadsworth,) the Ch. Just, held, an irregular Warrant might be admitted in Justification of the Officer, and that the Court were wrong in the Case of Gay on the other Side. (⁶)

Footnotes

5

(i) An illegal warrant is a justification only when regular on its face, and apparently within the jurisdiction of the court or magistrate issuing it. Fisber v. McGirr, 2 Gray, 45. Clark v. May, 2 Gray, 410, 413.

6

(6) The case referred to is Cornelius Bassett v. Wadsworth Mayhew & al. May Term 1763, which was an action of trespass for shooting the plaintiff, a deputy sheriff, in the leg, while he was endeavoring to arrest the defendant by virtue of the following warrant:

“ Dukes County ss : To the Sherriff of said County, his Under Sher-[seal.] “ riff of Deputy, Greeting. Whereas Robert Allen of Chill- “ mark in said County, Gentn. Has this Day appeared before “ the Justices of our Lord the King at His Majesty’s Court of “ General Self:s of The Peace, and made Complaint That he being in “ the Execution of his office as Corroner, at the House of Zacheus “ Mayhew Esq in Chillmark in the County aforesaid: Lawfully au “ thorized by a Mittimus to carry one Jerusha Mayhew to his Majesty’s “ Goal in Edgartown in said County, he was there opposed in his said “ Office by one Wadsworth Mayhew of said Chillmark by violently “ seizing the body of the said Jerusha & holding her, and Prevented his “ Carrying said Jerufha to his Majesty’s Goal: Which Doings of said “Wadsworth is Contrary to Law, &c. These are therefore in His “ Majesty’s Name, To Require You or Either of You forthwith to “ take the Body of the said Wadsworth (if he may be found in your “ Precinct), Against all Opposition to enter any House where you shall “ suspect him said Wadsworth to be, & to bring him forthwith before “ the Justices of Our Lord the King at his Majesty’s Court of Genral “ Seif:s of the Peace now Sitting in Self:s at Tilbury : So that he may “ be Dealt with According to Law in the Premises. Hereof fail not “ & make Return of this Writ with your Doings therein into f'd Court.

“ Dated at Tilbury The 26th Day of Octor. Anno Dom : 1762 & In “ the Third Year of his Majesty’s Reign.

“ Per Order of Court

“James Athearn Cler.”