Life, birth, and live-birth : a medico-legal study / by Stanley B. Atkinson.

  • Atkinson, Stanley Bean.
Date:
1904
Catalogue details

Licence: In copyright

Credit: Life, birth, and live-birth : a medico-legal study / by Stanley B. Atkinson. Source: Wellcome Collection.

Provider: This material has been provided by The Royal College of Surgeons of England. The original may be consulted at The Royal College of Surgeons of England.

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    Act apply, if the newly bom succumbs to the effects of a prenatal accident, for it was not then a legal person. A child cannot sustain an action on the ground that it was born either pre- maturely or deformed (‘maternal impressions’), owing to the wrongful act of another (Dulieu v. W/nte, 85 L. T. 126; Gorman v. Budlong, 49 Atl. K 704, E-. 1; Allaire v. St. Luke's Hosjx, 76 111. Ap. 441 ; cf. Walker v. G.N.R. Co., 28 L. R. Ir. 69). There is a French case where heavy damages were recovered from a negligent medical deliverer, by whose aid the plaintiff lost an arm as he journeyed into the world. Qui in tdero est pro jam nato hahetur, quoties cle eo agitur is, however, a maxim which has its occasional application in England. A murderess ‘ big with a quick child ’ will not be executed until it is born; but a recent embryo contingently taking an estate by the *civil law, may before it quickens (possibly four months later) be deprived of the contingency and of its life, by the operation of the Criminal Law, owing to the capital offence (formerly the treason or felony) of the mother (cf. In re Corlass, I Ch. D. 460). The civil status and the proprietary rights of the venter have often been considered. Mr. Justice Buckley has recently learnedly resurveyed the field, and his conclusions have been affirmed: ‘ The doctrine that a child en ventre sa mere must be considered as being born is general, and is to be treated as existing for all purposes other than descent at common law as regards rents during the intermediate period, and is not confined to cases where it is for the advantage of or is immaterial to such child to consider him as being born.’ The exception is where, prior to 1833, a tenant to the praecipe was rigorously required (Re Wilmer, 89 L. T. R. 148). Lo?ig v. Rlackall(q T. R. 100) decided that such an unborn ‘ life in being ’ might be the terminus a quo in the application of the rule, and the ultimate termmus ad quern to which the rule can be strained is a similar period of foetal develop- ment. In 1871 Sir R. Phillimore stayed the assessment of damages for homicide by negligence, until the deceased’s pregnant widow should be delivered of his live-born child, which was then recom- pensed (not merely solaced) under Lord Campbell’s Act (The George <So Richard, 20 W. R. 246, but cf. Seward v. The Vera Cruz, 10 App. Ca. 59 ; Blake v. M.R. Co. 18 Q. B. 93). Sarah Bay v. Guard. Ass. Co. (Boston Co. Ct., Feb. 9, 1904) was a case under the Workmen’s. Compensation Act, 1897 (s. 7, sub-s. 2): here part of the fund was deposited for a ‘ dependent ’ unborn child. In 1864 Lord Westbury ruled that the words ‘ born and living at the time of my decease,’ exclude a child unborn at that event, for they did not determine the persons taking, but limited the period of accumulation of a fund (Blasson v. Blasson, ii L. T. R. 353 ; cf. Re Harvey [1893] i Ch. 567).