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Statement of case.

a specific purpose of the suit, instead of being for its purposes generally. So that the only criticism upon the order which can be entertained is that it directs a payment for a specific purpose greater than the law does allow for that purpose; in other words, that the court has named a sum for referee's fees greater than the provisions of law therefor will warrant. But this criticism does not appear to be sustained by the facts. There is nothing in the papers which shows positively that the sum of $250 is greater than at the rate of three dollars per day, or at some rate stipulated by the parties for the time spent by the referee in the hearing and decision of the cause.

The appellant asks us to adjudge that in no case can a court award a fixed sum for the fees and compensation of a referee. While we might not hesitate to say that a court cannot fix the compensation of a referee in any case at a sum greater than that allowed by the statute, or agreed upon by the parties, we are not prepared to decide that it is error in any case to fix a sum for such compensation which falls within that limit.

The order appealed from must be affirmed, with costs to the respondent.

All concur.
Judgment affirmed.

BULMER et al., Respondents.

Personal service of a summons and complaint can be made out of the State only when publication is ordered. (Code, § 135.) When so made it is equivalent to publication and deposit in the post-office. Such service is not complete until the time prescribed for the publication has expired (135); and defendant has twenty days thereafter to answer. A judg. ment, therefore, entered for want of an answer prior to the expiration of the latter period, is irregular.

(Submitted March 27, 1872; decided April 2, 1872.)

Opinion of the Court, per RAPALLO, J.

APPEAL from order of General Term of the Supreme Court in the second judicial department, reversing order of Special Term directing the purchase at sale of mortgaged premises to complete the sale.

The action was brought to foreclose a mortgage of lands in Brooklyn, N. Y. Defendant, Sarah Ann Bulmer, is a nonresident, residing in New Jersey. October 2, 1871, an order was made, directing service of the summons on said defendant by publication six weeks, and mailing copy summons and complaint. October 4, 1871, summons and complaint were served personally on said defendant in New Jersey. October 26, 1871, judgment, on failure to answer, was entered. Respondent, the purchaser at the sale, refused to complete the purchase, on the ground that the judgment was irregular; the service on defendant, Sarah Ann Bulmer, not being com plete till the expiration of the six weeks mentioned in order of publication.

Edgar M. Cullen for the appellant. Personal service out of the State where publication is ordered is a completed service. (Dykers v. Woodward, 1 How., 315; Transcript, March 3, 1865.)

George S. Fox for the respondents. Where publication of summons has been ordered, and service of a copy of the summons and complaint has been personally made out of the State, defendant has twenty days to answer after the expiration of the time prescribed in the order for the publication. (Tomlinson v. Van Vechten, 6 How., 199; Abrahams v. Mitchell, 8 Abb., 123.)

RAPALLO, J. Personal service of the summons and com plaint can be made out of the State only when publication is ordered. (Code, § 135.) When so made, it is equivalent to publication and deposit in the post-office. (Id.) Section 137 declares that, in the cases mentioned in section 135, the service of the summons shall be deemed complete at the expira

Statement of case.

tion of the time prescribed by the order of publication. It is held, and we think correctly, in Tomlinson v. Van Vechten (6 How., 199), and in Abrahams v. Mitchell (8 Abb. Pr., 123), that where personal service is thus made out of the State, such service is not complete until the time prescribed for the publication has expired. Section 137 requires the lapse of this time to render the service complete in all the cases mentioned in section 135. It makes no exception where personal service is, pursuant to the same section, substituted for actual publication.

The order should be affirmed with costs.

All concur.

Order affirmed.

THOMAS LOOKUP EVANS, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

The willful killing of an unborn child is not manslaughter except as made so by statute.

To constitute the crime of manslaughter, created by chap. 631 of the Laws of 1869, in causing the death of an unborn child by an attempt to produce a miscarriage, the quickening of the child in the mother's womb must be averred and proved. The child is not the subject of manslaughter under the statute until it has "quickened."

Under an indictment, therefore, charging the accused with causing the death of the child, there can be no conviction of an attempt to commit the offence without proof that the child was quick" at the time of the commission of the wrongful acts with intent to produce the miscarriage. (GROVER, J., dissenting.)

(Argued March 1st, 1872; decided April 2d, 1872.)

ERROR to the General Term of the Supreme Court in the first judicial department, to review judgment of that court, affirming a judgment of the Court of General Sessions of the Peace in and for the city and county of New York, convicting plaintiff in error of an assault upon the person of Ann O'Neill, with intent to commit manslaughter in the second degree.

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Opinion of the Court, per ALLEN, J.

The substance of the indictment and the facts proved are set forth in the prevailing opinion.

The questions as to the admission of evidence, discussed in the dissenting opinion, not having been passed upon by the court, are omitted.

Samuel Hand for plaintiff in error. The procuring or the attempt to procure miscarriage of a child not quick is not a crime. (State v. Cooper, 2 Zabriskie, 52; Comm. v. Parker, 9 Metc., 263; Comm. v. Bangs, 1 Mass., 387.) The name of a party whose existence is essential to a charge must be proved as laid in the indictment; a variance is fatal. (1 Bisp. Crim. Pro., § 119; 1 Chitty, C. L., 216; State v. Waters, 3 Brev., 507; 1 East, P. C., 514; 2 Leach, 774; 1 id., 252, 286, 351, 370; 1 East, P. C., 415, 651; Barb. C. Law, 329; Ryan and M. C. C., 1; 2 East, P. C., 593; 1 Stark. Ev., 470; Rex v. Kelly, Carr. Sup., 42; Arch. C. P., vol. 1, 124.) A party is bound by the answer of his opponent's witness upon collateral matter drawn out upon cross-examination, and cannot contradict him. (Carpenter v. Ward, 30 N. Y., 243; Newcomb v. Griswold, 24 id., 299; Lawrence v. Barker, 5 Wend., 301; Harris v. Nelson, 7 id., 57; Howard v. City Fire Ins. Co., 4 Denio, 50; Stephens v. The People, 19 N. Y., 572.)

Algernon S. Sullivan for defendants in error.

ALLEN, J. The accused was indicted for the statutory offence of manslaughter in the second degree, created and defined by chap. 631 of the Laws of 1869, entitled "An act relating to the procurement of abortions, and other like. offences." He was charged with having, by acts and means mentioned in the first section of the act, caused and procured the miscarriage of one Ann O'Neill, then being pregnant with child, by which the death of the child was produced. The prosecution failed to prove that a miscarriage was effected, or that the death of the child was caused or produced by the

Opinion of the Court, per ALLEN, J.

act or agency of the prisoner. The pregnancy of the female was proved and that she was prematurely delivered of two living children, and evidence was given tending to prove that the prisoner had some time before the birth of the children furnished the mother with medicines, to be taken by her, and had also applied instruments to her person for the avowed purpose of procuring a miscarriage.

The act distinguishes, as the prior legislation of the State has distinguished, between the actual accomplishment of an abortion, resulting in the death of the mother or child, and the ineffectual attempt or the furnishing of means to effect a miscarriage, making the latter offence a misdemeanor and the former a felony.

The first section of the act makes the administering of medicines or the use of other means, with intent to produce a miscarriage, resulting in death, manslaughter in the second degree. It is the intent with which the act is committed that, in the case of the death of the female, reduces the crime from murder to manslaughter; for if the same acts are committed and the same means resorted to with intent to accomplish her death, and the death ensues, it is murder. Causing the death of an infant in the mother's womb was at a very early day deemed murder; but is not so regarded at the common law at the present time, and is not made so by statute. Such an infant is not considered a person or a human being, upon whom the crime of murder can be committed. (1 Russ. on Crimes, 485, 671.) At common law, an unsuccessful attempt to effect the destruction of an infant, "quick" in its mother's womb, appears to have been treated as a misdemeanor, and an actual destruction of such infant as a high crime. (1 Russ. on Crimes, 671; Commonwealth v. Bangs, 9 Mass., 387; Same v. Parker, 9 Metc., 263.)

The willful killing of an unborn child is not manslaughter, except as rendered so by statute. The general laws of the State make the killing of a quick child manslaughter in the first degree when caused by an injury to the mother, which would be murder if it resulted in the death of the mother.

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