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 ?
I am scarcely objectively aware that I think when I fight, so quickly does my point take advantage of every opening, or spring to my defense if I am threatened that it is almost as though the cold steel had eyes and brains.
These armies being, in the first case, rarely, if at all, called into activity for interior defense, the people are in no danger of being broken to military subordination.
It can apply the resources and power of the whole to the defense of any particular part, and that more easily and expeditiously than State governments or separate confederacies can possibly do, for want of concert and unity of system.
The attempt has awakened fully the public attention to that important subject; and has led to investigations which must terminate in a thorough and universal conviction, not only that the constitution has provided the most effectual guards against danger from that quarter, but that nothing short of a Constitution fully adequate to the national defense and the preservation of the Union, can save America from as many standing armies as it may be split into States or Confederacies, and from such a progressive augmentation, of these establishments in each, as will render them as burdensome to the properties and ominous to the liberties of the people, as any establishment that can become necessary, under a united and efficient government, must be tolerable to the former and safe to the latter.
The general who is skilled in defense hides in the most secret recesses of the earth; he who is skilled in attack flashes forth from the topmost heights of heaven.
he murmured proudly and turning his eyes to the benches where they had appeared for a moment; "they would have seen that their friend was worthy of their defense while alive, and of their tears when dead.
They were one of the few families then resident in the colonies who thought it a degradation to its members to descend to the pursuits of commerce; and who never emerged from the privacy of domestic life unless to preside in the councils of the colony or to bear arms in her defense.
The Judge left the Court, looking deeply disgusted: But the Snark, though a little aghast, As the lawyer to whom the defense was entrusted, Went bellowing on to the last.
Alarmed at rumors of this impending danger, the Astorians suspended their regular labor, and set to work, with all haste, to throw up temporary works for refuge and defense.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Create in us a clean heart and renew a right spirit within us, strengthen us all in Thy faith, fortify our hope, inspire us with true love one for another, arm us with unity of spirit in the righteous defense of the heritage Thou gavest to us and to our fathers, and let not the scepter of the wicked be exalted against the destiny of those Thou hast sanctified.
The Greystoke bungalow was not well adapted for defense.