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
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, 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.
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
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 circumstance's,
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 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 Finch's 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 husband, how long soever otherwise her
husband 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 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. C. N. 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; 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 France 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
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
fulfill 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. Sec. 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, Sec. 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
against 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.
, Black Death
, Grim Reaper
, Pale Death
, angel of death
, crack of doom
, crossing the bar
, death knell
, end point
, final solution
, final twitch
, final words
, grim reaper
, last breath
, last gasp
, last things
, last trumpet
, last words
, latter end
, memento mori
, pale horse
, pale rider
, resting place
, sickle of Death
, skull and crossbones
, stopping place
, swan song
, that fell sergeant
, that grim ferryman
, white cross