In Roman law. An exception. In a general sense, a judicial allegationopposed by a defendant to the plaintiff’s action. Calvin.A stop or stay to an action opposed by the defendant. Cowell.Answering to the “defense” or “plea” of the common law. An allegation and defenseof a defendant by which the plaintiff’s claim or complaint is defeated, either accordingto strict law or upon grounds of equity.In a stricter sense, the exclusion of an action that lay in strict law, on grounds ofequity, (actionis jure stricto compctentis ob aqultatem exclusio.) lleinecc. A kind oflimitation of an action, by which it was shown that the action, though otherwise just,did not lie in the particular case. Calvin. A species of defense allowed iu cases where,though tbe action as brought by tbe plaintiff was in itself just, yet it was unjust asagainst the particular party sued. Inst. 4, 13, pr.In modern civil law. A plea by which the defendant admits the cause of action, butalleges new facts which, provided they be true, totally or partially answer the allegationsput forward on the other side; thus distinguished from a mere traverse of theplaintiff’s averments. Tomkins & J. Mod. Rom. Law, 90. In this use, the termcorresponds to the common-law plea in confession and avoidance.
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