Page:Black's Law Dictionary (Second Edition).djvu/351

From Wikisource
Jump to navigation Jump to search
This page needs to be proofread.


DEFAULT

Comm. 396; 1 Tldd, Pr. 502; Page v. Sutton, 29 Ark. 306.

—Def'su1t of issue. Failure to have living diildren or descendants at a given time or fixed point. George v. Morgan, 16 Pa. 1W}.—I)efnnlter. Une who makes default. One who misiippropriates money held by him in an officlal or fiduciary CiJfi.l‘iXL'lel', or fails to account for such money.—Jmlg-nient by default. One eniered upon the failure of II party to appear or plead at the time appointed. See JUDGMENT.

DEFEASANCE. An instrument which defeats the force or operation of some other deed or estate. That which is in the same deed ls called a “condltion;" and that which is in another deed is a "defeasance." Com. Dig. "Dcfeasance."

In conveyancing. A collateral deed made at the same time with a fcoihneht or other conveyance, contaiiiing certain co1i(1itioi.is, upon the perforinauce of which the estate then created may be defcatul or totally iindone. 2 Bl. Comm. 327; C0. Litt. .430, 337.

An instrument ac(-oiupzinying a bond, re cognizance, or judgment, Cfllltilillillg a condjtion whlch, when performed, dcjcats or undoes it. 2 Bl Comm. 3-1.’; Co. Lltt. 2136. 1'37; Miller v. Quick, 158 M0. 495. 59 S. W. , Harrison v. Philips’ Academy, 12 Mass 436; Llppincott v. Tilton, 14 N. J. Law, 361; Vugent v. Riley, 1 Metc. (Mass) 119, 35 Am. Dec. 355.

DEFEASIBLE. Subject to be defeated, annulled, revoked, or undone upon the happening of a future event or the performance of a comlillori suhsequent, or by a conditionul liioltation. Usually spoken of estates and interests in land. For instance, a mort- gagee's estate is defeaslble (liable to be defeated) by the mortgagor’s equity of redemp- lion.

—-Defensilile fee. An estate in fee but which is liable to be defeated by some future contin- gency; e. 9., a vested remainder which might bedefcated by the death of the reinaindennan he- iore the time fixed for the taking ctIect of the ilcvisc. Forsyllie v. Lansing, 100 Ky. 513. 59 S. W’. S Vills v. “'ills. S5 Ky. -1.86. 3 S. W. 900.—Dei’essilile title: One that is liable to be annulled or made void, but not one that ls already void or an absolute nullity. Elder v. Scliuniacher, 18 0010. 433, 33 Pac. 175.

DEFEAT. To prevent, frustrate, or cir- cumvent: as in the phrase “hinder. delay. or defeat cieditors." Coleman v. Walker, 3 Mote. (Ky) 65. 77 Am. Dec. 163: Walker v. Sayers, 5 Bush (Ky.) 581.

To overcome or prevail against in any contest: as in speaking of the "defeated party" ln an action at law. Wood v. Bailey, 21 Wall. 6-1-2. ‘.72 L. Ed. CSO: Golf v. Wllhurn (I(,\'.) 79 s. W. 233.

To annul. undo, or terminate; as, a title or estate. See DEFEASIBLE.

DEFECT. The want or absence of some iegal requlslte; deficiency; imperfection; insufficicncy. Hsney~Canipbell Co. v. Creamery

343

DEFENDANT

Ass'n, 119 Iowa, 188, 93 N. W. 297: Bliven V. Sioux City, 85 Iowa, 346, 52 N. W. 246.

-—Defect of form. An imperfection in the style, manner, arrangement, or nonessential parts of a legal instrument, plea, indictment, etc., as distinguished from s "defect of sub- stance." See iiifru.—I)efect of pnrties. In pleading and practice. Insiilficicncy of the parties before a court in any given proceeding to give it jurisdiction and authority to decide the controversy, arising from the omission or fail- us to join plniiitifis or defendants who should have been brought in: never applied to a superfluity of parties or the improper addition of plaintiffs or (lcfcndants. Miider v Plano i\lf,". C0.. 17 S. D. 5:33, 97 N. W. 843: Rnilri (I (‘n. v. Schu er, 17 N. Y. 6%: Palmer v. ]J‘|\iS. 28 . 2 Beach v. Water 00.. 25 Mont 37 . I'ac. 111: lventhcrhv v. Mcikleiulin. 61 “'15. G7, 20 N. \'V. 3T4.—I)efect of sub- stance. An imperfection in the body or sub- siaiithe part of a legal instrument. plea. indictnicnt, etc.. consisting in the omission of sonierliing which is essential to be set forth. Stale v. Startup, 39 I\‘. J. Law, 432; Flcxner V. Dickerson, (35 Aln. 132.

DEFECTIVE. Lacking in some particu- lar whidi is essential to the completeness, legal sufficlency, or security of the ohject spoken of; as, a "(lcfect.i\‘e" highway or bridge. (Miinson v. Derby, 37 Conn. 310. 9 Am. Rep. 32; Whitney v. Ticonderoga, 53

Him, 214, 6 N. Y. Supp. 844;) machinery, F

(Machinery (‘o. v. Brady, 60 Ill. App. . writ or recognizance. (State v. Iavalley, 9 .\lo. bJfi; l\IcArthui- v. Boynton. 19 Colo. App. 234. 74 Pac. 542;) or title, (Copcrtlni v. Oppermann, 76 Cal. 181, 18 Pac. 250.)

DEFECTUS. Lat. Defect: default; want; imperfection; dlsqiialification. —Cl1nIlenge p:*o[Itex- defeciznni. A clini- len,~ze to :1 juror on amount of some legal dis- quslificatlnn. such as infancy. etc. See (‘HAL LENGE.—l)efaci:lls sanguinis. Failure of the blood. i. 92., failure or want of issue.

DEFEND. To prohibit or forbid. To deny. To contest and endeavor to defeat a claim or demand made against one in a court of justice. Boehmcr v. Irrigation Dist, 117 Cal. 19, 48 Pac. 908. To oppose. repel. or resist.

In covenants of warranty ln deeds. it means to protect. to maintain or keep secure. to guaranty, to agree to indemnify.

DEFENDANT. The person defending or denying; the party against whom relief or

recovery is sought in an action or suit. Jew K

ett Car 00. v. Kirkpatrick Const. Co. (C. C.) 107 Fed. 622: Bi-uivcr v. Nellis, 6 Ind. App. 3'23, 33 N. E. 672; Tyler v. State, 63 Vt. 300, 21 Atl. 611; Insurance Co. v. Alexandre (D. 0.) 16 Fed. 281.

In common usage, this term is applied to thi- party put upon his defense, or summoned to answer a charge or complaint. in any species of action. civil or criminal, at law or in cquitv. Strictly, however, it does not Ilppiy to the person against whom a real action is hrought_ for in that proceeding the t '

calusageistocallwl