That which is offered and alleged by the party proceeded against in an action or suit, as a reason in law or fact why the plaintiff should not recover or establish what he seeks; what is put forward to defeat an action. More properly what is sufficient when offered for
More... That which is offered and alleged by the party proceeded against in an action or suit, as a reason in law or fact why the plaintiff should not recover or establish what he seeks; what is put forward to defeat an action. More properly what is sufficient when offered for this purpose. In either of these senses it may be either a denial, justification, or confession and avoidance of the facts averred as a ground of action, or an exception to their sufficiency in point of law. Whitfield v. Insurance Co. (C. C.) 125 Fed. 270; Miller v. Martin, 8 N. J. Law, 204;
Baler v. Humpall, 16 Neb. 127, 20 N, W. 106? Cohn v. Hussen, 66 How. Prac. (N.Y.) 151; Railroad Co. v. Uinchcliffe, 34 Misc. Rep. 49, 68 N. Y. Supp. 556; Brower v. Nellis, 6 Ind. App. 323, 33 N. E. 672.
In a stricter sense, defense is used to denote the answer made by the defendant to the plaintiff's action, by demurrer or plea at law or answer in equity. This is the meaning of the term in Scotch law. Ersk. Inst. 4, 1, 66.
Half defense was that which was made by the form, "defends the force and injury, and says," (defendit vim et injuriam, et dicit.)
Full defense was that which waB made by the form "defends the force and injury when ana where it shall behoove him, and the damages, and whatever else he ought to defend," (de-fendit vim et injuriam quando et ubi curia consider a vit, et damna et quicquid quod ipse de-fendere debet, et dicit,) commonly shortened into "defends the force and injury when," etc. Gilb. Com. PI. 188; 8 Term, 632 ; 3 Bos. & P. 9, note; Co. Litt. 1276.
In matrimonial suits, in England, defenses are divided into absolute, i. e., such as, being established to the satisfaction of the court, are a complete answer to the petition, so that the court can exercise no discretion, but is bound to dismiss the petition; and discretionary, or such as, being established, leave to the court a discretion whether it will pronounce a decree or dismiss the petition. Thus, in a suit for dissolution, condonation is an absolute, adultery by the petitioner a discretionary, defense. Browne, Div. 30.
Defense also means the forcible repelling of an attack made unlawfully with force and violence.
In old statutes and records, the term means prohibition; denial or refusal. Enconter le defense et le commandement de roy; against the prohibition and commandment of the king. St.' Westm. 1, c. 1. Also a state of severalty, or of several or exclusive occupancy; a state of inclosure.
-Affidavit of defense. See AFFIDAVIT.- Affirmative defense. In code pleading. New matter constituting a defense; new matter which, assuming the complaint to be true, constitutes a defense to it. Carter v. Bank, 33 Misc. Rep. 128, 67 N. Y. Supp. 300.- Equitable defense. In English practice, a defense to an. action on grounds which, prjor to the passage of the common-law procedure act (17 & 18 Vict c. 125,) would have been cognizable only in a court of equity. In American practice, a defense which is cognizable in a court of equity, but which is available there only, and not in an action at law, except under the reformed codes of practice. Kelly v. Hurt, 74 Mo. 570: New York v. Holzderber, 44 Misc. Rep. 509, 90 N. Y. Supp. 63.-Frivolous defense. One which at first glance can be seen to be merely pretensive, setting up some ground which cannot be sustained by argument Dominion Nat. Bank v. Olympia Cotton Mills (C. C.) 128 Fed: 182.-Meritorious defense. One going to the merits, substance, or essentials of the case, as distinguished from dilatory or technical objections. Cooper v. Lumber Co., 61 Ark. 36, 31 S. W. 981.-Partial defense. One which goes only to a part of the cause of action, or which only tends to mitigate the damages to be awarded. Carter v. Bank, 33 Misc. Rep. 128, 67 N. Y. Supp. 300. -Peremptory defense. A defense which insists that the plaintiff never had the right to institute the suit, or that if he had, the original right is extinguished or determined. 4
Bouv. Inst. no. 4206-Pretermitted defense. One which was available to a party and of which he might have had the benefit if he had pleaded it in due season, but which cannot afterwards be heard as a basis for affirmative relief. Swennes v. Sprain, 120 Wis. 68, 97 N. W. 511.-Sham defense. A false or fictitious defense, interposed in bad faith, and manifestly untrue, insufficient, or irrelevant on its face.-Self-defense. See that title.-Defense an fond en droit. In French and Canadian law. A demurrer.-Defense an fond en fait. In French and Canadian law. The general issue. 3 Low. Can. 421.-Legal defense. (1) A defense which is complete and adequate in point of law. (2) A defense which may be set up in a court of law; as distinguished from an "equitable defense." which is cognisable only in a court of equity or court possessing equitable powers.
Less...
