DEAD Something which has no life; figuratively, something of no value.
DEAD BODY, crim. law. A corpse.
2. To take up a dead body without lawful authority, even for the
purposes of dissection, is a misdemeanor, for which the offender may be
indicted at common law. 1 Russ. on Cr. 414; 1 Dowl. & R. 13; Russ.
& Ry. 366, ii. b; 2 Chit. Cr. Law, 35. This offence is punished by
statute in New Hampshire, Laws of N. H. 339, 340 in Vermont, Laws of
Vermont, 368 .c. 361; in Massachusetts, stat. 1830, c. 51; 8 Pick. 370;
11 Pick. 350; in New York, 2 Rev. Stat. 688. Vide 1 Russ. 414, n. A.
3. The preventing a dead body from being buried, is also an indictable
offence. 2 T. R. 734; 4 East, 460; 1 Russ. on Cr. 415 and 416, note A.
4. To inter a dead body found in a river, it seems, would render the
offender liable to an indictment for a misdemeanor, unless he first sent
for the coroner. 1 Kenyon's R. 250.
DEAD-BORN, descent, persons. Children dead-born are considered,
in law, as if they had never been conceived, so that no one can claim a
title, by descent, through such dead-born child. This is the doctrine of
the civil law. Dig. 50, 16, 129. Non nasci, et natum mori, pare, sunt.
Mortuus exitus, non est exitus. Civil Code of Louis. art. 28. A child in
ventre sa mere is considered in being, only when it is for its
advantage, and not for the benefit of a third person. The rule in the
common law is, probably, the same, that a dead-born child is to be
considered as if he had never been conceived or born in other words, it
is presumed he never had life. it being a maxim of the common law, that
mortuus exitus non est exitus. Co. Litt. 29 b. See 2 Paige, R. 35; Domat, liv. prel. t. 2, s. 1, n. 4, 6; 4 Ves. 334.
DEAD FREIGHT, contracts. When the charterer of a vessel has
shipped part of the goods on board, and is not ready to ship the
remainder, the master, unless restrained by his special contract, may
take other goods on board, and the amount which is not supplied,
required to complete the cargo, is called dead freight.
2. The dead freight is to be calculated according to the actual capacity of the vessel. 3 Chit. Com. Law; 399 Stark. 450.
DEAD MAN'S PART, English law. By the custom of London, when a
deceased freeman of the city left a widow and children, after deducting
what was calledthe widow's chamber, (q.v.) his personal property was
divided into three parts; one of which belonged to the widow, another
tot he children, and the third to the administrator. When there was only
a widow, or only children, in either case they respectively took one
moiety, and the administrator the other; when there was neither widow
nor child, the administrator took the whole for his own use and this
portion was called the "dead man's part." By statute of 1 Jac. 2, c. 17,
this was changed, and the dead man's part is declared to be subject to
the statute of distribution. 2 Bl. Com. 518. See Bac. Ab. Customs of London, D 4.
DEAD LETTERS. Those which remain in the post-office, uncalled
for. By the Act of March 8, 1825, 3 Story. L. U. S. 1993, it is enacted,
by §26, "That the postmasters shall, respectively, publish, at the
expiration of every three months, or oftener, when the postmaster
general shall so direct, in one of the newspapers published at, or
nearest, the place of his residence, for three successive weeks, a list
of all the letters remaining in their respective offices; or instead
thereof, shall make out a number of such lists, and cause them to be
posted at such public places, in their vicinity, as shall appear to them
best adapted for the information of the parties concerned; and, at the
expiration of the next three months, shall send such of the said letters
as then remain on hand, as dead letters, to the general post office
where the same shall be opened and inspected; and if any valuable
papers, or matters of consequence, shall be found therein, it shall be
the duty of the postmaster general to return such letter to the writer
thereof, or cause a descriptive list thereof to be inserted in one of
the newspapers published at the place most convenient to the supposed
residence of the owner, if within the United States; and such letter,
and the contents, shall be preserved, to be delivered to the person to
whom the same shall be addressed, upon payment of the postage, and the
expense of publication. And if such letter contain money, the postmaster
general may appropriate it to the use of the department, keeping an
account thereof, and the amount shall be paid by the department to the
claimant as soon as he shall be found."
3. And by the Act of July 2, 1836, 4 Sharsaw. Cont. of Story, L. U. S.
2474, it is enacted by §35 that advertisements of letters remaining in
the post-offices, may, under the direction of the postmaster general, be
made in more than one newspaper: provided, that the whole cost of
advertising shall not exceed four cents for each letter.
DEAD-PLEDGE. A mortgage of lands or goods - mortuum vadium.
DEAF AND DUMB. No definition is requisite, as the words are
sufficiently known. A person deaf and dumb is doli capax but with such
persons who have not been educated, and who cannot communicate, their
ideas in writing, a difficulty sometimes arises on the trial. 2. A case
occurred of a woman, deaf and dumb, who was charged with a crime. She
was brought to the bar, and the indictment was then read to her, and the
question, in the usual form, was put, guilty or not guilty ? The
counsel for the prisoner then rose, and stated that he could not allow
his client to plead to the indictment, until it was explained to her
that she was at liberty to plead guilty or not guilty. This attempted to
be done, but was found impossible, and she was discharged from the bar
"simpliciter."
3. A person, deaf and dumb, may be examined as a witness, provided he
can be sworn, that is, if he is capable of understanding the terms of
the oath, and assents to it and if, after he is sworn, he can convey his
ideas, with or without an interpreter, to the court and jury. Phil.,
Ev. 14.
DEAF, DUMB, AND BLIND. A man born deaf, dumb, and blind, is considered an idiot. (q. v.) 1 Bl. Com. 304; F. N. B. 233; 2 Bouv. Inst. n. 2111.
DEALINGS. Traffic, trade; the transaction of business between two or more persons.
2. The English statute 6 Geo. IV. c. 16, s. 81, declares all dealings
with a bankrupt, within a certain time immediately before his
bankruptcy, to be void. It has been held, under this statute, that
payments were included under the term "dealings." M. & M. 137; 3
Car. & P. 85; S. C. 14 Eng. C. L. R. 219.
DEAN, eccl. law. An ecelesiastictl officer, who derives his name
from the fact that he presides over ten canons, or, prebondaries, at
least. There are several kinds of deans, namely: 1. Deans of chapters.
2. Deans of peculiars. 3. Rural deans. 4. Deans in the colleges. 5.
Honorary deans. 6. Deans of provinces.
DEATH, med. jur., crim. law, evidence. The cessation of life.
2. It is either natural, as when it happens in the usual course, without
any violence; or violent, when it is caused either by the acts of the
deceased, or those of others. Natural death will not be here considered
further than may be requisite to illustrate the manner in which violent
death occurs. A violent death is either accidental or criminal; and the
criminal act was committed by the deceased, or by another.
3. The subject will be considered, 1. As it relates to medical
jurisprudence; and, 2. With regard to its effects upon the rights of
persons.
4. - §1. It is the office of medical jurisprudence, by the light and
information which it can bestow, to aid in the detection of crimes
against the persons of others, in order to subject them to the
punishment which is awarded by the criminal law. Medical men are very
frequently called upon to make examinations of the bodies of persons.
who have been found dead, for the purpose of ascertaining the causes of
their death. When it is recollected that the honor, the fortune, and
even the life of the citizen, as well as the distribution of impartial
justice, frequently depend on these examinations, one cannot but be
struck at the responsibility which rests upon such medical men,
particularly when the numerous qualities which are indispensably
requisite to form a correct judgment, are considered. In order to form a
- correct opinion, the physician must be not only skilled in his art,
but he must have made such examinations his special study. A man may be
an enlightened physician, and yet he may find it exceedingly difficult
to resolve, properly, the grave and almost always complicated questions
which arise in cases of this kind. Judiciary annals, unfortunately,
afford but too many examples of the fatal mistakes made by physicians,
and others, when considering cases of violent deaths.
5. In the examination of bodies of persons who have come to a violent
death, every precaution should be taken to ascertain the situation of
the place where the body was found; as to whether the ground appears to
have been disturbed from its natural condition; whether there are any
marks of footsteps, their size, their number, the direction to which
they lead, and whence they came -whether any traces of blood or hair can
be found - and whether any, and what weapons or instruments, which
could have caused death, are found in the vicinity; and these
instruments should be carefully preserved so that they may be
identified. A case or two may here be mentioned, to show the importance
of examining the ground in order to ascertain the facts. Mr. Jeffries
was murdered at Walthamstow, in England,
in 1751, by his niece and servant. The perpetrators were suspected from
the single circumstance that the dew on the ground surrounding the
house had not been disturbed on the morning of the murder. Mr. Taylor,
of Hornsey, was murdered in December, 1818, and his body thrown into the
river. It was evident he, had not gone into the river willingly, as the
hands were found clenched and contained grass, which, in the struggle,
he had torn from the bank. The marks of footsteps, particularly in the
snow, bave been found, not unfrequently, to correspond with the shoes or
feet of suspected persons, and led to their detection. Paris, Med. Jur.
vol. iii. p. 38, 41.
6. In the survey of the body the following rules should be observed: 1.
It should be as thoroughly examined as possible without changing its
position or that of any of the limbs; this is particularly desirable
when, from appearances, the death has been caused by a wound, because by
moving it, the altitude of the extremities may be altered, or the state
of a fracture or luxation changed; for the internal parts vary in their
position with one another, according to the general position of the
body. When it is requisite to remove it, it should be done with great
caution. 2. The clothes should be removed, as far as necessary, and it
should be noted what compresses or bandages (if any) are applied to
particular parts, and to what extent. 3. The color of the skin, the
temperature of the body, the rigidity or flexibility of the extremities,
the state of the eyes, and of the sphincter muscles, noting at the same
time whatever swellings, ecchymosis, or livid, black, or yellow spots,
wounds, ulcer, contusion, fracture, or luxation may be present. The
fluids from the nose, mouth, ears, sexual organs, &c., should be
examined; and, when the deceased is a female, it may be proper to
examine the sexual organs with care, in order to ascertain whether
before death she was ravished or not. 1 Briand, Med. Leg. 2eme partio,
ch. 1, art. 3, n. 5, p. 318. 4. The clothes of the deceased should be
carefully examined, and if parts are torn or defaced, this fact should
be noted. A list should also be made of the articles found on the body,
and of their state or condition, as whether the purse of the deceased
had been opened; whether he had any money, &c. 5. The state of the
body as to decomposition should be, particularly stated, as by this it
may sometimes be ascertalued when the death took place; experience
proves that in general after the expiration of fourteen days After
death, decomposition has so far advanced, that identity cannot be
ascertained, excepting in some strongly developed peculiarity; but in a
drowned body, adipocire is not produced until five or six weeks after
death but this depends upon circumstance's, and varies according to
climate, seasun, &c. It is exceedingly important, however to keep
this fact in view in some judicial inquiries relative to the time of
death. 1 Chit. Med. Jur. 443. A memorandom should be made of all the
facts as they are ascertained when possible, it should be made on the
ground, but when this cannot be done, as when chemical experiments are
to be made, or the body is to be dissected, they should be made in the
place where these operations are performed. 1 Beck's Med. Jur. 5; Dr.
Gordon Smith, 505; Ryan's Med. Jur. 145; Dr. Male's Elem. of Judicial
and For. Med. 101; 3 Paris & Fonbl. Med. Jur. 23 to 25; Vilanova Y
Manes, Materia Criminal Forense, Obs. 11, cap. 7, n. 7; Trebuchet,
Medecine Legale, 12, et seq; 1 Briand, Med. Leg. 2eme partie, ch. 1,
art. 5. Vide article Circumstances.
7. - §2. In examining the law as to the effect which death has upon the
rights of others, it will be proper to consider, 1. What is the
presumption of life or death. 2. The effects of a man's death.
8. - 1. It is a general rule, that persons who are proved to have been
living, will be presumed to be alive till the contrary is proved and
when the issue is upon the death of a person, the proof of the fact lies
upon the party who asserts the death. 2 East, 312; 2 Rolle's R. 461.
But when a person has been absent for a long time, unheard from, the law
will presume him to be dead. It has been adjudged, that after
twenty-seven years 3 Bro. C. C. 510; twenty years in another case;
sixteen years; 5 Ves. 458; fourteen years; 3 Serg. & Rawle, 390
twelve years; 18 John. R. 141; seven years; 6 East, 80, 85; and even
five years Finchs R. 419; the presumption of death arises. It seems that
even seven years has been agreed as the time when death may in general
be presumed. 1 Phil. Ev. 159. See 24 Wend. R. 221; 4 Whart. R. 173. By
the civil law, if any woman marry again without certain intelligence of
the death of her hushand, how longsoever otherwise her hushand be absent
from her, both she and he who married her shall be punished as
adulterers. Authentics, 8th Coll.; Ridley's View of the Civ. and Ecc.
Law, 82.
9. The survivorship of two or more is to be proved by facts, and not by
any settled Iegal rule, or prescribed presumption. 5 B. Adolp. 91; 27 E.
C. L. R. 45; Cro. Eliz. 503 Bac. Ab. Execution D; 2 Phillim. 261; 1
Mer. R. 308; 3 Hagg. Eccl. R. 748; But see 1 Yo. & Coll. C. N. 121; 1
Curt. R. 405, 406, 429. In the following cases, no presumption of
survivor-ship was held to arise; where two men, the father and son, were
hanged about the same time, and one was seen to struggle a little
longer than the other; Cor. Eliz. 503; in the case of General Stanwix,
who perished at sea in the same vessel with his daughter; 1 Bl. R. 610;
and in the case of Taylor and his wife, who also perished by being
wrecked at sea with her, to whom he had bequeathed the principal part of
his fortune. 2 Phillim. R. 261; S. C. 1 Eng. Eccl.
R. 250. Vide Fearne on Rem. iv.; Poth. Obl. by Evans, vol. ii., p. 345;
1 Beck's Med. Jur. 487 to 502. The Code Civil of Fance has provided for
most, perhaps all possible cases, art. 720, 721 and 722. The provisions
have been transcribed in the Civil Code of Louisiana, in these words:
10. Art. 930. If several persons respectively entitled to inherit from
one another, happen to perish in the same event, such as a wreck, a
battle, or a conflagration, without any possibility of ascertaining who
died first, the presumption of survivorship is determined by the
circumstances of the fact.
11. Art. 931. lu defect of the circumstances of the fact, the
determination must be guided by the probabilities resulting from the
strength, ages, and-difference of sex, according to the following rules.
12. Art. 932. If those who have perished together were under the age of
fifteen years, the eldest shall be presumed to have survived. If both
were of the age of sixty-years, the youngest shall be presumed to have
survived. If some were under fifteen years, and some above sixty, the
first shall be presumed to have survived.
13. Art. 933. If those who perished together, were above the age of
fifteen years, and under sixty, the male must be presumed to have
survived, where there was an equality of age, or a difference of less
than one year. If they were of the same sex, the presumption of
survivorship, by which the succession becomes open in the order of
nature, must be admitted; thus the younger must be presumed to have
survived the elder.
14. - 2. The death of a man, as to its effects on others, may be
considered with regard, 1. To his contracts. 2. Torts committed by or
against him. 3. The disposition of his estate; and, 4. To the liability
or discharge of his bail.
15. - 1st. The contracts of a deceased person are in general not
affected by his death, and his executors or administrators are required
to fulfil his engagements, and may enforce those in his favor. But to
this general rule there are some exceptions; some contracts are either
by the terms employed in making them, or by implication of law, to
continue only during the life of the contracting party. Among these may
be mentioned the following cases: 1. The contract of marriage.- 2. The
partnership of individuals. The contract of partnership is dissolved by
death, unless otherwise provided for. Indeed the partnership will be
dissolved by the death of one or more of the partners, and its effects
upon the other partners or third persons will be the same, whether they
have notice of the death or otherwise. 3 Mer. R. 593; Story, Partn.
§319, 336, 343; Colly. Partn. 71; 2 Bell's
Com. 639, 5th ed.; 3 Kent, Com. 56, 4th ed.; Gow, Partn. 351; 1 Molloy,
R. 465; 15 Ves. 218; S. C. 2 Russ. R. 325.; 3. Contracts which are
altogether personal; as, for example, where the deceased had agreed to
accompany the other party to the contract, on a journey, or to serve
another; Poth. Ob. P. 3, c. 7, a. 3, §2 and 3; or to instruct an
apprentice. Bac. Ab. Executor, P; 1 Burn's Just. 82, 3; Hamm. on Part. 157; 1 Rawle's R. 61.
16. The death of either a constituent or of an attorney puts an end to
the power of attorney. To recall such power two things are necessary;
1st. The will or intention to recall; and, 2d. Special notice or general
authority. Death is a sufficient recall of such power, answering both
requisites. Either it is, according to one hypothesis, the intended
termination of the authority or, according to the other, the cessation
of that will, the existence of which is requisite to the existence of
the attorney's power; while on either supposition, the event is, or is
supposed to be, notorious. But exceptions are admitted where the death
is unknown, and the authority, in the meanwhile, is in action, and
relied on. 3 T. R. 215; Poth; Ob. n. 448.
17. - 2d. In general, when the tort feasor or the party who has received
the injury dies, the action for the recovery of the damages dies with
him; but when the deceased might have waived the tort, and maintained
assumpsit arainst the defendant, his personal representative may do the
same thing. See the article Actio Personalis moriturcum persona, where
this subject is more fully examined. When a person accused and guilty of
crime dies before trial, no proceedings can be had against his
representatives or his estate.
18. - 3d. By the death of a person seised of real estate, or possessed
of personal property at the time of his death; his property vests when
he has made his will, as he has directed by that instrument; but when he
dies intestate, his real estate vests in his heirs at law by descent,
and his personal property, whether in possession or in action, belongs
to his executors or administrators.
19. - 4th. The death of a defendant discharges the special bail. Tidd,
Pr. 243; but when he dies after the return of the ca. sa., and before it
is filed, the bail are fixed. 6 T. R. 284; 5 Binn. R. 332, 338; 2 Mass. R. 485; 1 N. H. Rep. 172; 12 Wheat. 604; 4 John. R. 407; 3 McCord, R. 49; 4 Pick. R. 120; 4 N. H. Rep. 29.
20. Death is also divided into natural and civil.
21. Natural death is the cessation of life.
22. Civil death is the state of a person who, though possessing natural
life, has lost all his civil rights, and, as to them, is considered as
dead. A person convicted and attainted of felony, and sentenced to the
state prison for life, is, in the state of New York, in consequence of
the act of 29th of March, 1799, and by virtue of the conviction and
sentence of imprisonment for life, to be considered as civilly dead. 6
Johns. C R. 118; 4 Johns. C. R. 228, 260; Laws of N. Y. Sess. 24, ch.
49, s. 29, 30, 31; 1 N. R. L. 157, 164; Co. Litt. 130, a; 3 Inst. 215; 1
Bl. Com. 132, 133; 4 Bl. Com. 332; 4 Vin. Ab. 152. See. Code Civ. art.
22 a 25; 1 Toull. n. 280 and p. 254, 5, note; also, pp. 243-5, n. 272; 1
Malleville's Discussion of the Code Civil, 45, 49, 51, 57. Biret,
Vocab. au mot Effigie.
23. Death of a partner. The following effects follow the death of a
partner, namely: 1. The partnership is dissolved, unless otherwise
provided for by the articles of partnership. Gow's Partn. 429. 2. The
representatives of the deceased partner become tenants in common with
the survivor in all partnership effects in possession. 3. Choses in
action so far survive that the right to reduce them into possession
vests exclusively in the survivor. 4. When recovered, the
representatives of the deceased partner have, in, equity, the same right
of sharing and participating in them that their testator or intestate
would have had had he been living. 5. It is the duty and the right of
the surviving partner to settle the affairs of the firm, for which he is
not allowed any compensation. 6. The surviving partner is alone to be
sued at law for debts of the firm, yet recourse can be had in equity
against the assets of the deceased debtor. Gow's Partn. 460. Vide
Capital Crime; Dissolution; Firm; Partners; Partnership; Punishment.
See, generally, Bouv. Inst. Index, h. t.
DEATH BED, Scotch law. The incapacity to exercise the power of disposing of one's property after being attacked with a mortal disease.
2. It commences with the beginning of such disease.
3. There are two exceptions to this general rule, namely: 1. If he
survive for sixty days after the act or, 2. If he go to kirk or market
unattended. He is then said to be in legitima potestate, or in liege
poustie. 1 Bell's Com. 84, 85.
DEATH BED OR DYING DECLARATIONS. In cases of homicide, those
which are made in extremis, when the person making them is conscious of
his danger and has given up all hopes of recovery, charging some other
person or persons with the murder. See 1 Phil. Ev. 200; Stark. Ev. part
4, p 458; 15 Johns. R. 288; 1 Hawk's R. 442; 2 Hawk's R. 31; McNally's
Ev. 174; Swift's Ev. 124.
2. These declarations, contrary to the general rule that, hearsay is not
evidence, are constantly received. The principle of this exception is
founded partly on the situation of the dying person, which is considered
to be as powerful over his conscienceas the obligation of an oath, and
partly on the supposed absence of interest on the verge of the next
world, which dispenses with a necessity of a cross-examination. But
before such declarations can be ad-mitted in evidence against a
prisoner, it must be satisfactorily proved, that the deceased at the
time of making them was conscious of his danger and had given up all
hopes of recovery. 1 Phil. Ev. 215, 216; Stark. Ev. part 4, p. 460.
3. They are admissible, as such, only in cases of homicide, where the
death of the deceased is the subject of the charge, and the
circumstances of the death are the subject of the dying declarations. 2
B. & C. 605; 15 John. 286: 4 C. & P. 233.Vide. 2 M. & Rob.
53.
4. The declarant must not have been incapable of a religious sense of
accountability to his Maker; for, if it appears that such religious
sense was wanting, whether it arose from infidelity, imbecility or
tender age, the declarations are alike inadmissible. 1 Greenl. Ev. §157;
1 Phil. Ev. 289; Phil. & Ani. Ev. 296; 2 Russ. on Cr. 688. See, in
general, Bac. Abr. Evidence, K; Addis. R. 832 East's P. C. 354, 356; 1
Stark. C. 522 2 Hayw. R. 31; 1 Hawk's R. 442; Swift's Ev. 124; Pothier,
by Evans, vol. 2, p. 293; Anth. N. P. 176, and note a; Str. 500.
DEATH'S PART, English law. That portion of the personal estate of
a deceased man which remained after his wife and children had received
their reasonable parts from his estate; which was, if he had both a wife
and child or children, one-third part; if a wife and no child, or a
child or children and no wife, one-half; if neither wife nor child, he
had the whole to dispose of by his last will and testament; and if he
made no will, the same was to go to his administrator. And within the
city of London, and throughout the province of York, in case of
intestacy, the wife and children were till lately entitled to their
reasonable parts, and the residue only was distributable by, the statute
of distribution; but by the 11 G. I. c. 18, s. 17, 18, the power of
devising was thrown generally open. Burn's L. Dict., See this dict. tit.
Legitime, and Lex Falcidia.
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