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Bouvier's Law Dictionary, Revised 6th Edition (1856)

DEFENCE, torts. A forcible resistance of an attack by force.
2. A man is justified, in defending his person, that of his wife,
children, and servants, and for this purpose he may use as much force as may
be necessary, even to killing the assailant, remembering that the means used
must always be proportioned to the occasion, and an excess becomes, itself,
an injury.
3. A man may also repel force by force in defence of his personal
property, and even justify homicide against one Who manifestly intends or
endeavors by violence or surprise to commit a known felony, as robbery.
4. With respect to the defence or protection of the possession of real
property, although it is justifiable even to kill a person in the act of
attempting to commit a forcible felony, as burglary or arson, yet this
justification can only take place when the party in possession is wholly
without fault. 1 Hale, 440, 444; 1 East, P. C. 259, 277. When a forcible
attack is made upon the dwelling-house of another, without any felonious
intent, but barely to commit a trespass, it is in general lawful to oppose
force by force, when the former was clearly illegal. 7 Bing. 305; S. C. 20
Eng. C. L. Rep. 139. Vide, generally, Ham. N. P. 136, 151 1 Chit. Pr. 589,
616; Grot. lib. 2, c. 1 Rutherf. Inst. B. 1, c. 16.


DEFENCE, pleading, practice. It is defined to be the denial of the truth or
validity of the complaint, and does not signify a justification. It is a
general assertion that the plaintiff has no ground of action, which
assertion is afterwards extended and maintained in the plea. 3 Bl. Com. 296;
Co. Litt. 127. It is similar to the contestatio litis of the civilians.
2. Defence is of two descriptions; first half defence, which is as
follows, "venit et defendit vim et injuriam, et dicit," &c.; or secondly,
full defence, "venit et defendit vim et injuriam, quando," &c. meaning
"quando et ubi curia consideravit," (or when and where it shall behoove
him,) "et damna et quicquid quod ipse defendere debet et dicit," &c. Co.
Litt. 127, b; Bac. Abr. Pleas, D Willis, 41.
3. In strictness, the words quando, &c. ought not to be added when only
half defence is to be made; and after the words "venit et defendit vim et
injuriam," the subject matter of the plea should immediately be stated.
Gilb. C. P. 188; 8 T. R. 6 3 2; 3 B. & P. 9, n. a.
4. It has, however, now become the practice in all cases, whether half
or full defence be intended, to, state it a's follows: "And the said C D, by
M N, his attorney, comes and defends the wrong, (or in trespass, force) and
injury, when, &c. and says," which will be considered only as half defence
in cases where such defence should be made, and as full defence where the
latter is necessary. 8 T. R. 633; Willis, 41 3 B. & P. 9; 2 Saund. 209, c.
5. If full defence were made expressly by the words "when and where it
shall behoove him," and "the damages and whatever else he ought to defend,"
the defendant would be precluded from pleading to the jurisdiction or in
abatement, for by defending when and where it shall behoove him, the
defendant acknowledges the jurisdiction of the court and by defending the
damages he waives all. exception to the person of the plaintiff. 2 Saund.
209, c.; 3 Bl. Com. 297 Co. Litt. 127, b Bac. Abr. Pleas, D.
6. Want of defence being only matter of form, the omission is aided by
general demurrer. 3 Salk. 271. See further, 7 Vin. Abr. 497; 1 Chit. Pl.
410; Com. Dig. Abatement, I 16; Gould. on Pl. c. 2, s. 6-15; Steph. Pl. 430.
7. In another sense, defence signifies a justification; as, the
defendant has made a successful defence to the charge laid in the
indictment.
8. The Act of Congress of April 30, 1790, 1 Story, L. U. S. 89, acting
upon the principles adopted in perhaps all the states, enacts, Sec. 28, that
every person accused and indicted of the crime of treason, or other capital
offence, shall "be allowed and admitted to make his full defence by counsel
learned in the law; and the court before whom such person shall be tried, or
some judge thereof, shall, and they are hereby authorized and requited,
immediately upon his request, to assign to such person such counsel, not
exceeding two, as such person shall desire, to whom such counsel shall have
free access, at all seasonable hours; and every such person or persons,
accused or indicted of the crimes aforesaid, shall be allowed and admitted
in his said defence, to make any proof that he or they can produce, by
lawful witness or witnesses, and shall have the like process of the court
where he or they shall be tried, to compel his or their witnesses to appear
at his or their trial, as is usually granted to compel witnesses to appear
on the prosecution against them."
9. Defences in equity may be classed in two divisions, namely into
dilatory defences, (q.v.) and into those which are peremptory. Matters of
peremptory or permanent defences may be also divided into two sorts, first,
those where the plaintiff never had any right to institute the suit; for
example: 1. That the plaintiff had not a superior right to the defendant. 2.
That the defendant has no interest. 3. That there is no privity between the
plaintiff and defendant, or any right to sustain the suit. Secondly, those
that insist that the original right, if any, is extinguished or determined;
as, 1. When the right is determined by the act of the parties; or, 2. When
it is determined by operation of law. 4 Bouv. Inst. n. 4199, et seq.; 1
Montag. Eq. Pl. 89. See Dilatory Defence; Merits.

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