KFLCC Kingdom Law 2nd Ed.

344

DEFENDANT

DEFENSE

the parties respectively the "demandant" and the "tenant." —Defendant In error. The distinctive term appropriate to the party against whom a writ of error is sued out. DEFENDEMTTS. Lat A word used in grants and donations, which binds the donor and his heirs to defend the donee, If any one go about to lay any incumbrance on the thing given other than what is contained in the deed of donation. Bract. 1. 2, c 16. DEFENDER. (FT.) To deny; to defend; to conduct a suit for a defendant; to forbid; to prevent; to protect. DEFENDER. In Scotch and canon law. A defendant DEFENDER OF THE FAITH. A pe culiar title belonging to the sovereign of Eng land, as that of "Catholic" to the king of Spain, and that of "Most Christian" to the king of France. These titles were originally given by the popes of Rome; and that of Defensor Fidei was first conferred by Pope Leo X. on King Henry VIII., as a reward for writing against Martin Luther; and the bull for it bears date quinto Idus Octob., 1521. Enc. Lond. DEFENDERE SE PER CORPUS SU VM. To offer duel or combat as a legal trial and appeal. Abolished by 59 Geo. III. § 46. See BATTEL. DEFENDERE TTNICA* MANTJ. To wage law; a denial of an accusation upon oath. See WAGEB or LAW. DEFENDIT VIM ET INJURIAM. He defends the force and injury. Fleta, lib. 5, c. 39, § 1. DEFENDOUR. L. Fr. A defender or defendant; the party accused in an appeal. Britt c. 22. DEFENERATION. The act of lending money on usury. 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. 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 de feat an action. More properly what is suffi cient when offered for this purpose. In ei ther of these senses it may be either a denial, justification, or confession and avoidance of the facts averred as a ground of action, or an exception to their sufficiency in point of law. Whitfield v. Insurance Co. (a C.) 125 Fed. 270; Miller v. Martin, 8 N. J. Law, 204;

Baier v. Humpall, 16 Neb. 127, 20 N. W. 108; Cohn v. Hussen, 66 How. Prac. (N. Y.) 151; Railroad Co. v. Hinchcliffe, 34 Misc. Rep. 49, 68 N. Y. Supp. 556; Brower v. Nellls, 6 Ind. App. 323, 33 N. E. 672. 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 is the mean ing of the term in Scotch law. Ersk. Inst 4, 1, 66. Half defense was that which was made by the form "defends the force and injury, and says," (defendvt mm et injuriam, et dicit) 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," (de fendit vim et injurtam quando et ubi curia con sideravit, et damna et quicquid quod ipse de fendere debet, et dicit,) commonly shortened in to "defends the force and injury when," etc. Gilb. Com. PI. 188; 8 Term, 632; 3 Bos. & P. 9, note; Co. Litt 127&. In matrimonial suits, in England, defenses are divided into absolute, i. e., such as, being es tablished 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 dis solution, 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. Enconter le defense et le comma/ndement 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. —Affidavit of {defense. See AFFIDAVIT.— Affirmative defense. In code pleading. New matter constituting a defense; new mat ter which, assuming the complaint to be true, constitutes a defense to it. Carter v. Bank, 33 Misc. Rep. 128, 67 N. Y. Supp. 300.— Eqnitable defense. In English practice, a defense to an action on grounds which, prior to the passage of the common-law procedure act, (17 & 18 Vict c. 125,) would have been cog nizable only in a court of equity. In Amer ican 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. Holzderber, 44 Misc. Rep. 509, 90 N. Y. Supp. 63.—Frivol ons 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 (a C.) 128 Fed: 182.—Meritorious defense. One going to the merits, substance, or essen tials of the case, as distinguished from dilatory or technical objections. Cooper v. Lumber Co., 61 Ark. 36, 31 S. W. 981.—Partial de fense. One which goes only td a part of the cause of action, or which only tends to miti gate the damages to be awarded. Carter v. Bank, 33 Misc. Rep. 128, 67 N. Y. Supp. 300. —Peremptory defense. A defense which in sists that the plaintiff never had the right to institute the suit, or that if he had, the orig inal right is extinguished or determined. 4