That which is offered and alleged by the party proceeded against in anaction or suit, as a reason in law or fact why the plaintiff should not recover or establishwhat he seeks; what Is put forward to defeat an action. More properly what is sufficientwhen offered for this purpose. In either of these senses it may be either a denial,justification, or confession and avoidance of the faefs averred as a ground of action, oran exception to their sufficiency in point of law. Whitfield v. Insurance Co. (C. C.) 125Fed. 270; Miller v. Martin, 8 N. J. Law, 204;Baier v. Humpall, 16 Neb. 127, 20 N. W. 108; Cohn v. Ilussen, 66 How. Prac. (N. Y.)151: Kail road Co. v. Hinclicliffe, 34 Misc. Eep. 49, 68 X. Y. Supp. 550; Brower v. Nellis. 6 Ind. App. 323, 33 N. E. 672.In a stricter sense, defense is used to denote the answer made by the defendant tothe plaintiff’s action, by demurrer or plea at law or answer in equity. This is the meaningof the term in Scotch law. Ersk. Inst. 4, 1, 60.Half defense was that which was made by the form “defends the force and injury,and says,” Idcfendit vim ct injuriain, el dieit.)Full defense was that which was made by the form “defends the force and injurywhen anil where it shall behoove him. and the damages, and whatever else he ought todefend.” (defend it vim ct injuriam quundo ct ubi curia con- sideravit, ct damna ctquiequiil quod i/isc de- fenderc debet, ct dieit,) commonly shortened into “defends theforce and injurv when,” etc. Gilb. Com. PI. 188; 8 Term, 632; 3 Bos. & P. 9, note; Co. Litt. 1276.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 tlie petition,so that the court can exercise no discretion, but is bound to dismiss the petition; anddiscretionary, or such as, being established, leave to the court a discretion whether itwill pronounce a decree or dismiss the petition. Thus, in a suit for dissolution,condonation is an absolute, adultery by tlie 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. Fnconterle defense ct le commandcment de roy; against the prohibition and commandment ofthe king. St. Westni. 1, c. 1. Also a state of severalty, or of several or exclusive occupancy;a state of inclosure.
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