defense

any claim that is a "sword," challenging the prosecution's conduct of the case, the term may encompass only the narrower class of "shield" claims, which refute the Government's arguments that the defendant committed the crime charged.

In Torts. A forcible resistance of an attack by force. See "Self-Defense." In Pleading and Practice. The denial of the truth or validity of the complaint. A general assertion that the plaintiff has no ground of action, which is afterwards extended and maintained in the plea. 3 Sharswood, Bl. Comm. 296; Co. Litt. 127. In this sense it is similar to the contestatio litis of the civilians, and does not include justification. In a more general sense it denotes the means by which the defendant prevents the success of the plaintiff's action, or, in criminal practice, the indictment. The word is commonly used in this sense in modem practice. Half defense was that which was made by the form "defends the force and injury, and says," defendit' vim et injuriam, et dicit. PMU defense was that which was made by the form "defends the force and injury when and where it shall behoove him, and the damages and whatever else he ought to defend," defendit vim et injuriam quando et ubi curia consideravit, et damna et quicquid quod ipse defendere debet, et dicit, commonly shortened into "defends the force and injury when," etc. Gilb. C. P. 188; 8 Term R. 632; 3 Bos. & P. 9, note; Co. Litt. 127b; ■^illes, 41. It follows immediately upon the statement of appearance, "comes" (venit), thus: "comes and defends." By the general defense, the propriety of the writ, the competency of the plaintiff, and the jurisdiction of the court were allowed; by defending the force and injury, misnomer was waived; by defending the damages, all exceptions to the court was admitted. 3 Sharswood, Bl. Comm. 298. The distinction between the forms of half and full defense was first lost sight of (8 Term. R. 633; Willes, 41; 3 Bos. & P. 9; 2 Saund. 209c), and no necessity for a technical defense exists, under the modem forms of practice. DEFENSE AU FOND EN DROIT (called, also, defence en droit). A demurrer. 2 Low. (U. S.) 278. See, also, 1 Low. (U. S.) 216.

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 suffl-cient when offered for this purpose. In either of these senses it may be either a denial, justification or cohfession and avoidance of the facts averred as a ground of action or an exception to their sufficiency in point of law. Whitfield v. Insurance Ch (C. C.) 125 Fed. 270; Mlller v. Martin, 8 N. J. Law, 204; Baier v. Hnmpall, 16 Neb. 127, 20 N. W. 108; Cohn v. Hussen, 66 How. Prae. (N. Y.) 151; Railroad Co. v. Hlnchcliffe, 34 Misc. Rep. 49, 68 N. Y. Supp. 556; Brower v. Nellie, 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 pica at law or answer in equity. This is the meaning of the term in Scetch law. Ersk. Inst 4, l, 66. Half defense was that which was made by the form "defends the force and injury, and says," (defendit vim et injuriam, et dioit) Full defense was that which was made by the form "defends the force and injury when and where it shall behoove him, and the damages, and whatever else he ought to defend," (defendit mm et injuriam quando et ubi curia consideravit, et damna et quicquid quod ipse defendere 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. 127b. 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 recerds, 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, e, 1. Also a state of severalty, or of several or exclusive occupancy; a state of inclosure.

— Affidavit of (defense. See Aotdavit.

— 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, prior to the passage of the common-law procedure act, (17 & 18 Viet 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. Hnizderber, 44 Misc. Ren. 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 (O. Ct) 128 Fedl 182.

— Meritorious defense. One going to the merits, substance, or essentials of the case, as distinguished from dilatory or technical objections. Cooper v. Lumbar Co.., 61 Aria 36, 31 S. W. 981.

— Partial defense. One which goes only td 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 seasoq, but which cannot afterwards be heard as a basis for affirmative relief. Swennes v. Sprain. 120 Wis. 68, 07 N. W. 511.

— Sham defense. A false or fictitious defense, interposed in bad fnith, 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 au 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 ia cognizable only in a court of equity or court possessing equitable powers.

That which is offered and alleged by the party proceeded against in an action or suit, a8 a reason im law or fact why the plaintiff should not recover or establish what he seeks; what is put forward te defeat an action. More properly what is stficzent when offered for this purpose. In either of these senses it may be either a denial, justification, or confession and avoidance of the faets averred as a ground of action, or an exception to their suiiciency in point of law.

In a stricter sense, defense is used to denote the answer made by the defeadant to the plaintiffs action, by demurrer ur plea at law or answer in equity. This i. che meauing of the term in Seotch law. Ersk. Inst. 4, 1, 66. Hulf defense was that which was made by the form “defends the forces and injury, and says,” (defendit vim et injuriam, et diet.) Tuli defense was that which was made by the form “defends the force and injury when and where itshall behoove him, and the dameges, and whatever else he ought todefend,” (defendit vim e Linjuriam quando eb whi curia consideravtt, et damnea et quicquid quod ipse dufendere debet, et dicit,) commonly shortened into * lefends the force and injury when,” etc. Gilb. Com. Pi. 188; $ Term. 632; 8 Bos. & P. 9, note; Co. Litt, 127b. In matrimonial suits, in Engiand, defenses are divided into whsolute, 7. €., sucu as, being estab- H lished to the satisfaction of the court, are 3 complete answer to the petition, so that the court can exercise no diseretion, but is boand to dismiss the petition; and discretionary, or suchas, 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 a netiiiouer discretionary, defense. Browne, Div. 80. 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. Hreonter le defense et le comimandement de voy; against ' the probibitiun and commandment of the king. St. Westm.1,¢.1. Also a state of severalty, or of several or exclusive occupancy; a state of inclosure.

Defens, L. Fr. Defence. Britt. c. 22.