defence


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defence

in civil proceedings a defence maybe one of the following:
  1. (i) a traverse, i.e. a formal denial of an alleged fact
  2. (ii) a denial of the plaintiff's claim
  3. (iii) an allegation of counterclaim
  4. (iv) a confession and avoidance
  5. (v) a statement of defence raising an objection in point of law to the effect that the facts alleged, even if established, do not disclose a good cause of action. In Scottish written civil pleadings, a defender lodges written defences. In criminal matters there is no written defence; a defence is raised by the plea of not guilty. In Scottish solemn criminal procedure, there are certain special defences that require to be lodged timeously in writing:

ALIBI, incrimination (see INCRIMINATE), INSANITY, non-insane automatism and SELF-DEFENCE.

DEFENCE, torts. A forcible resistance of an attack by force.
     2. A man is justified, in defending his person, that of his wife, children, and servants, and for this purpose he may use as much force as may be necessary, even to killing the assailant, remembering that the means used must always be proportioned to the occasion, and an excess becomes, itself, an injury.
     3. A man may also repel force by force in defence of his personal property, and even justify homicide against one Who manifestly intends or endeavors by violence or surprise to commit a known felony, as robbery.
     4. With respect to the defence or protection of the possession of real property, although it is justifiable even to kill a person in the act of attempting to commit a forcible felony, as burglary or arson, yet this justification can only take place when the party in possession is wholly without fault. 1 Hale, 440, 444; 1 East, P. C. 259, 277. When a forcible attack is made upon the dwelling-house of another, without any felonious intent, but barely to commit a trespass, it is in general lawful to oppose force by force, when the former was clearly illegal. 7 Bing. 305; S. C. 20 Eng. C. L. Rep. 139. Vide, generally, Ham. N. P. 136, 151 1 Chit. Pr. 589, 616; Grot. lib. 2, c. 1 Rutherf. Inst. B. 1, c. 16.

DEFENCE, pleading, practice. It is defined to be the denial of the truth or validity of the complaint, and does not signify a justification. It is a general assertion that the plaintiff has no ground of action, which assertion is afterwards extended and maintained in the plea. 3 Bl. Com. 296; Co. Litt. 127. It is similar to the contestatio litis of the civilians.
     2. Defence is of two descriptions; first half defence, which is as follows, "venit et defendit vim et injuriam, et dicit," &c.; or secondly, full defence, "venit et defendit vim et injuriam, quando," &c. meaning "quando et ubi curia consideravit," (or when and where it shall behoove him,) "et damna et quicquid quod ipse defendere debet et dicit," &c. Co. Litt. 127, b; Bac. Abr. Pleas, D Willis, 41.
     3. In strictness, the words quando, &c. ought not to be added when only half defence is to be made; and after the words "venit et defendit vim et injuriam," the subject matter of the plea should immediately be stated. Gilb. C. P. 188; 8 T. R. 6 3 2; 3 B. & P. 9, n. a.
     4. It has, however, now become the practice in all cases, whether half or full defence be intended, to, state it a's follows: "And the said C D, by M N, his attorney, comes and defends the wrong, (or in trespass, force) and injury, when, &c. and says," which will be considered only as half defence in cases where such defence should be made, and as full defence where the latter is necessary. 8 T. R. 633; Willis, 41 3 B. & P. 9; 2 Saund. 209, c.
     5. If full defence were made expressly by the words "when and where it shall behoove him," and "the damages and whatever else he ought to defend," the defendant would be precluded from pleading to the jurisdiction or in abatement, for by defending when and where it shall behoove him, the defendant acknowledges the jurisdiction of the court and by defending the damages he waives all. exception to the person of the plaintiff. 2 Saund. 209, c.; 3 Bl. Com. 297 Co. Litt. 127, b Bac. Abr. Pleas, D.
     6. Want of defence being only matter of form, the omission is aided by general demurrer. 3 Salk. 271. See further, 7 Vin. Abr. 497; 1 Chit. Pl. 410; Com. Dig. Abatement, I 16; Gould. on Pl. c. 2, s. 6-15; Steph. Pl. 430.
     7. In another sense, defence signifies a justification; as, the defendant has made a successful defence to the charge laid in the indictment.
     8. The Act of Congress of April 30, 1790, 1 Story, L. U. S. 89, acting upon the principles adopted in perhaps all the states, enacts, Sec. 28, that every person accused and indicted of the crime of treason, or other capital offence, shall "be allowed and admitted to make his full defence by counsel learned in the law; and the court before whom such person shall be tried, or some judge thereof, shall, and they are hereby authorized and requited, immediately upon his request, to assign to such person such counsel, not exceeding two, as such person shall desire, to whom such counsel shall have free access, at all seasonable hours; and every such person or persons, accused or indicted of the crimes aforesaid, shall be allowed and admitted in his said defence, to make any proof that he or they can produce, by lawful witness or witnesses, and shall have the like process of the court where he or they shall be tried, to compel his or their witnesses to appear at his or their trial, as is usually granted to compel witnesses to appear on the prosecution against them."
     9. Defences in equity may be classed in two divisions, namely into dilatory defences, (q.v.) and into those which are peremptory. Matters of peremptory or permanent defences may be also divided into two sorts, first, those where the plaintiff never had any right to institute the suit; for example: 1. That the plaintiff had not a superior right to the defendant. 2. That the defendant has no interest. 3. That there is no privity between the plaintiff and defendant, or any right to sustain the suit. Secondly, those that insist that the original right, if any, is extinguished or determined; as, 1. When the right is determined by the act of the parties; or, 2. When it is determined by operation of law. 4 Bouv. Inst. n. 4199, et seq.; 1 Montag. Eq. Pl. 89. See Dilatory Defence; Merits.

References in classic literature ?
We immediately proceeded to collect what we could of our horses, and other cattle, and bring them through the posterns into the fort: And in the evening of the ninth, I returned answer, that we were determined to defend our fort while a man was living--Now, said I to their commander, who stood attentively hearing my sentiments, We laugh at all your formidable preparations: But thank you for giving us notice and time to provide for our defence.
Macey, though he joined in the defence of Marner against all suspicions of deceit, also pooh-poohed the tinder-box; indeed, repudiated it as a rather impious suggestion, tending to imply that everything must be done by human hands, and that there was no power which could make away with the guineas without moving the bricks.
He had killed the woman in defence of his own life and the life of his sister; and every one had a right to slay in self-defence, except as against the king or those who did the king's bidding.
Thither let us bend all our thoughts, to learn What creatures there inhabit, of what mould, Or substance, how endu'd, and what thir Power, And where thir weakness, how attempted best, By force or suttlety: Though Heav'n be shut, And Heav'ns high Arbitrator sit secure In his own strength, this place may lye expos'd The utmost border of his Kingdom, left To their defence who hold it: here perhaps Som advantagious act may be achiev'd By sudden onset, either with Hell fire To waste his whole Creation, or possess All as our own, and drive as we were driven, The punie habitants, or if not drive, Seduce them to our Party, that thir God May prove thir foe, and with repenting hand Abolish his own works.
I say,'' repeated the Pilgrim in a firm and strong voice, ``that the English chivalry were second to =none= who ever drew sword in defence of the Holy Land.
I do not admit it," said Miss Wilson, ready to argue, even with Smilash, in defence of her system.
They look upon fraud as a greater crime than theft, and therefore seldom fail to punish it with death; for they allege, that care and vigilance, with a very common understanding, may preserve a man's goods from thieves, but honesty has no defence against superior cunning; and, since it is necessary that there should be a perpetual intercourse of buying and selling, and dealing upon credit, where fraud is permitted and connived at, or has no law to punish it, the honest dealer is always undone, and the knave gets the advantage.
Here, brother Sancho Panza," said Don Quixote when he saw it, "we may plunge our hands up to the elbows in what they call adventures; but observe, even shouldst thou see me in the greatest danger in the world, thou must not put a hand to thy sword in my defence, unless indeed thou perceivest that those who assail me are rabble or base folk; for in that case thou mayest very properly aid me; but if they be knights it is on no account permitted or allowed thee by the laws of knighthood to help me until thou hast been dubbed a knight.
In what relation the Apology of Plato stands to the real defence of Socrates, there are no means of determining.
On this point the defence of the Square seems to me to be impregnable.
The count was asked what time he required to prepare his defence.
Further, the enemy would naturally on his arrival at once burn and ruin the country at the time when the spirits of the people are still hot and ready for the defence; and, therefore, so much the less ought the prince to hesitate; because after a time, when spirits have cooled, the damage is already done, the ills are incurred, and there is no longer any remedy; and therefore they are so much the more ready to unite with their prince, he appearing to be under obligations to them now that their houses have been burnt and their possessions ruined in his defence.