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ant as soon as he shall be found." And by the act of July 2, 1836, 4 Sharsw. 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.
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. 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 was attempted to be done, but was found impossible, and she was discharged from the bar rimplieiter. A person, deaf and dumb, may be examined as a witness, provided he can be sworn, that is, that he is capable of understanding the terms of the oath, and assents to it; and that 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.
DEALINGS. Traffic, trade; the transaction of business between two or more persons. The English statute of 6 Geo. 4, 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 terra dealings. M. & M. 137; 3 Car. & P. 85; S. C. 14 Eng. C. L. R. 219.
DEATH, med. jur., crim. law, evidence. The cessation of life. 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. The subject will be considered, 1, as it relates to medical jurisprudence; and, 2, with regard to its effects upon the rights of persons.
§ 1. It is the office of medical jurisprudence, by the light and information which it can bestow, to aid in the detection of criminals against the persons of others, in order to subject them to the punishment which is awarded by the criminal law. Medical men are very fre. quently called upon to make examinations of the bodies of persons who have been found dead, for the purpose of ascertaining the cause of their death. When it is recollected that the honour, 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 physU cian must be not only skilled in his art, but he must have made such ex animations his special study. A man may be an enlightened physician and a skilful chemist, 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. 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, likely to 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, have 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. 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 colour of the skin, the temperature of the body, the rigidity or flexibi- • lity of the extremities, the state of the eyes, and of the sphincter muscles, noting at the same time whatever swellings, ccchymosis 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 has been ravished or not. 1 Briand, Med. Leg. 2eme partie, 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 ascertained 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 circumstances, and varies according to climate, season, &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 memorandum 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 have 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 Maries, 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.
§ 2. In examining the law as to the effects 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.
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, Finch's R. 419; the presumption of death arises. It seems that 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.
The survivorship of two or more is to be proved by facts, and not by any settled legal 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. N. C. 121; 1 Curt. R. 405, 406, 429. In the following cases, no presumption of survivorship 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, Cro. 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 his wife, to whom he had bequeathed the principal part of his fortune. 2 Philhm. R. 261, S. C. 1 Eng. Eccl. R. 250, S. C. Vide Fearne on Rem. iv.; Poth. Obi. by Evans, vol. ii. p. 345; 1 Beck's Med. Jur. 487 to 502. The Code Civil of France has provided for most, perhaps all possible cases, art. 720, 721, and 722. These provisions have been transcribed in the Civil Code of Louisiana, in these words:
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.
Art. 931. In defect of the circumstances of the fact, the determination must be guided by the probabilities resulting from the strength, age, and difference of sex, according to the following rules.
Art. 9:i2. If those who have perished together were under the age of fifteen years, the eldest shall be presumed to have survived. If both j 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 j survived.
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.
2. The death of a man, as to its effects upon 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.
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 favour. 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. The death of either the constituent or of an attorney puts an end to the power of attorney. To recall such power two things are necessary; 1 st, the will or intention to recall; and, 2dly, 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.
2d. In general when the tortfeasor or the party who has received the injury dies, the action for the recovery of damages dies with him, but when the deceased might have waived the tort, and maintained assumpsit against the defendant, his personal representative may do the same thing. See the article Actio personalis moritur cum 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.
M. 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 a 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.
4th. The death of a defendant discharges the special bail. Tidd, Pr. 243; but when he dies after the return of the ca. sq., and before it is filed, the bail are fixed. 6 T. R. 284; 5 Binn. R. 332, 338 ; 2 Mass. R. 4«5; 1 N. H. Rep. 172 ; 12 Wheat. 604; 4 John. R. 407; 3 M'Cord, R. 49; 4 Pick. R. 120; 4 N. H. Rep. 29.
Death is also divided into natural and civil. By the former is understood the cessation of life; and by the latter the deprivation of all civil rights.
DEATH BED or DYING DECLARATIONS, are those which are made in extremis, when the person making them was conscious of his danger and had given up all hopes of recovery, in cases of homicide, 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; M'Nallv Ev. 174; Swift's Ev. 124. 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 conscience as the obligation of an oath, and partly on the supposed absence of interest on the verge of the next world, which dispenses with the necessity of a cross-examination. But before such declarations can be admitted 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.
See, in general, Bac. Abr. Evidence, K; Addis. R. 332; 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, CIVIL, 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; IN. 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.
DEATH'S PART, English /air, is 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