Note 353 — TENANT TO THE COURTESEY.

A cause in illustration of this subject was tried in 1806. Fish v. Palmer—and was as follows: Fish had a still-born child by his wife, and at her death, as no issue had been born alive, he resigned the estate to his wife’s brother-in-law. He was, however, afterwards induced to contest the fact of the child having been born dead. The accoucheur, Dr. Lyon, had died before the trial, but it appeared in evidence, that he had declared the child to be living an hour before the delivery, and having directed a warm bath to be prepared, gave the child to the nurse to be immersed in it. It neither cried, nor moved, nor did it shew any signs of life; but two women swore, that while in the hot water, there twice appeared a twitching and tremulous motion of the lips: upon informing Dr. Lyon of this, he desired them to blow into its throat, but it never exhibited any other signs of vitality. It was declared by Drs. Babington and Haighton, that the muscular motion of the lips could not have happened if the vital principle had been quite extinct, and that, therefore, the child was born alive. Dr. Denman, however, gave a contrary opinion, and declared that the child was not born alive; and he attempted to establish an important distinction between uterine and extra-uterine life, and considered that the tremulous motion of the lips might arise from some remains of the former. Foderé in quoting the case expresses a similar opinion, and pronounces that the slight convulsive motions alluded to, ought not to have been received as evidence of the child’s vitality. The Jury, however, found that the child was born alive.