Page:Black's Law Dictionary (Second Edition).djvu/352

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DEFENDANT

the parties respectively the "dcmandant" and the “tenant "

—Defendant in error. The distinctive term appropriate to the party against whom 11 writ of error is sued out.

DEFENDEMUS. Lot. A Word used in grants and donations, which lginds the donor and his heirs to defend the donee, if any one go about to lay any incumbrancc on the thing given other Lhnn what is contained in the deed of donation. Bract. l. 2, (L IS.

DEFENDER. (Fr.) To deny; to defend; to conduct a suit for a defendant; to forbid; to prevent; to protect

DEFENDER. A defendant

In Scotch and canon law.

DEFENDER OF THE FAITH. A pecuilnr title belonging to the sovei cign of England, as that of “Catholic" to the king of Spain, and that of “Most Christian" to the lung of France. These titles were Originally given by the popes of Rome; and that of Defensar Fidci was first conferred by Pope Leo X. on King Henry VIII., as a reward for writing ngsinst Martin Luther; and the hull for it bears date qulnto Idus Or.tob., 1521. Enc. Land.

DEFENDERE SE PER CORPUS SU- UM. To oiffer duel or combat as a legal trial and appeal. Abolished by 59 Geo. III. § 46. See BATIEL.

DEFENDERE UNIC3 MANU. Towilge law; a denial of an accusation upon oath. See Wacas or LAW.

DEPENDIT VIIM ET INJURIAM. defends the force and injury. I3. 39, § 1.

He Fleta, iii). 5,

DEFENDOUR. L. Fr. A defender or defendant; the party accused in an appeal. Britt. (L 22.

DDIENERATION. money on usury.

The act of lending

DEFENSA. In old English law. A park or place fenced in for deer, and defended as a property and peculiar for that use and service. Coviell.

DEFENSE. That which is oiiered and alleged by the party proceeded against in an action or suit, as a renson in law or fact why the plaintiff should not recover or establish what he seeks; what is put forward to defont an action. More properly -what is sum- rtrni when offered for this rurpose. In either of these senses it may be either a denial, justification, or confession and avoidance of the fncts averted as a ground of action, or an exception to their sufhciency in point of law. Whitfield v. Insurance Co. (C. C.) 125 Fed. 270; Miller v. Martin, 8 N. J. Law, 204;

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DEFENSE

Baler v. Humpall, 16 Neb. 127, 20 N. W. 108; Conn v. Hussen, 66 How. Prac. (N. Y.) 1519 Railroad Co. v. Hinchclitfe, 34 Misc. R9 49, 63 N. Y. Supp. 536; Brower v. Neill; 6 Ind. App. 323, 33 N. E. 672. '

In a stricter sense, defense is used to In note the answer made by the defemlixm to the plaintiffs action, by demurrer ul‘ pin on law or nnswer in equity. This is the mill: ing of the term in Scotch law. Ersk. in‘ 4, 1, 66.

Half defense was that which was made by fin form "defends the force and injury, and son." (dtfmdit rim. et iniuriwm, ct an-iij

Full defense was that which was made by the form "defends the force and injury vilun and Wl.\('l'€ it shaii hehoove him, and the d

00% a1'dcra.vit, ct dumna ct quicquid quad ipoe do fendcre dcbet, ct ¢Iieit,) commonly shortened II]- to "defends the force and injury when." etc. Gilb. Cqm. Pl. 188; S Tenn, 6312; 3 Bos. & I’. 9, note; C0. Litt. 127b.

In matrimonial suits, in England, defenses are divided into absolute. I". 2., 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 bout to dismiss the petition; and niiacreiionary. or anch as, being estahlished_ leave to the court I discretion whether it will pronounce a ilucrer or dismiss the petition. Thus. in a suit fox-(B solution, condonotion is an absolute, adultery by the petitioner a discretionary. defense Brow-ne, Div. 30.

Defense also means the forcible repelling of an attack made unlawfully with force and violence.

In aid statutes and records, the term means prohibition: denial or refusal. Encontor le defense et le cammaudement 412 row; against the prohibition and commandment of the king. St. Westm. 1, c. 1. Also a state of severalty, or of several or exclusive occu- pancy; a state of inclosure.

—Aflidnv'it of defense. See ArrIniivn~.— Aiiirmative defense. In code pleading. \'(-u matter constituting 1 defense; new matter which, assuming the complaint to be true. constitutes a defense to it. Carter v. Rank. 33 Misc. Rnp. 128. 67 N. Y. Supp. 300.- Eqnitable defense. In English pr"ietiLe. n defcnse to an xution on grounds which. plinr to the passage of the common-law procedure act. (17 & 18 Vict. c. 1%,) would hora been cognimble only in a court of equity. In American practice, a defense which is cmznizable in a court of equity, but which is available there only, and not in an action nt law. except under the reformed codes of practice. Kelly v. iiuri. 7-1» M0. 570: New York v. Iiriizricrber, 44 Misc. Rep. 509, 90 N. 1. Supp. 63.—Frivoione defense. One which at first glance am be seen to be merely pretensive, setting up sortie ground which cannot be sustained hyargument Dominion Nat. Bank v. Oi} mpia Cotton Mills 10. G.) 128 Fed. l82.—lV.[er:itnrious defense. One going to the merits. sulxstunce, or essentials of the case, as distinguished from dilator: or let-hnical objections. (‘runner v. Lumber Co., 61 Ark. 36. 31 S. W. 9S1—Pa.rt:in‘i defense. One which goes only to a part of the cause of action, or which only tends to mitigate the damages to be an-irded. Carter v. Bank. 33 Misc. Rep. 128, 6".’ N. Y. Supp. 300. —Perexnpto1-y defense. A defense which insists that the plainilfi‘ never had the right to institute the suit, or that, if he hm], the mig-

inal right is extinguished or determined. 4