Blacks Law Dict. 1st ed

845

DEFENSE AU FOND EN FAIT

DEFEND

ID covenants of warranty in deeds, it

DEFENSA. In old English law. A park or place fenced in for deer, and defended as a property and peculiar for that use and serv ice. Cowell. DEFENSE. 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 sufficient when offered for this purpose. In either of these senses it may be either a denial, justi fication, or confession and avoidance of the facts averred as a ground of action, or an ex ception to their sufficiency in point oC law. In a stricter sense, defense is used to de note the answer made by the defendant to the plaintiff's action, by demurrer or plea at law or answer in equity. This r. che mean ing of the term in Scotch law. Ersk. Inst. 4, 1, 66. Half defense was that which WM made by the form "defends the force and injury, and says," (defendit vim et injuriam, et dicfo.) Full defense was that which w&s 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 uM curia consideravit, et damna et quiequid quod ipse dtfendere debet, et didt,) commonly shortened into * defends the force and injury when," etc. Gilb. Com. PL 188; 8 Term. 632; 3 Bos. & P. 9, note; Co. Litt. 127b. In matrimonial suits, in England, defenses are divided into absolute, i. e., sucii as, being estab lished to the satisfaction of tht> court, are a com plete answer to the petition, so that the court can exercise no discretion, but is boand to dismiss the petition; and discretionary, or such as, being estab lished, 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 records, the term means prohibition; denial or refusal. Encunterle defense et le commandement de roy; 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.

DEFENSE AU 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.

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