Definition of DEFENSE in Black's Law Dictionary 4th Edition – Legal dictionary – Glossary of legal terms.
Definition of 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 diminish plaintiff's cause of action or defeat recovery. 'Etna Life Ins. Co. v. Braukman, C.C.A.Colo., 70 F.2d 647, 649; Lindsay v. State, Tex.Civ.App., 25 S.W.2d 1113, 1115. More properly what is sufficient when offered for this purpose. In either 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. Aetna Life Insurance Co., C.C.Mo., 125 F. 270; Eagle Savings & Loan Ass'n v. West, 71 Ohio App. 485, 50 N.E.2d 352, 356; Paillet v. Vroman, 52 Cal.App.2d 297, 126 P. 2d 419, 421; (challenge to jurisdiction) Tradesmens Nat. Bank & Trust Co. v. Charlton Steam Shipping Co., D.C.Pa., 3 F.R.D. 363, 364; (denial) Levine v. Behn, 282 N.Y. 120, 25 N.E.2d 871, 873; (legal insufficiency) Dysart v. Remington Rand, D.C.Conn., 31 F.Supp. 296, 297; (payment) Hoadley v. W. T. Rawleigh Co., 112 Ind.App. 563, 44 N. E.2d 231, 232; (statute of limitations) Waggoner v. Feeney, 220 Ind. 543, 44 N.E.2d 499, 502.
In a stricter sense, defense is used to denote the answer made by the defendant to the plaintiff's action, by demurrer or plea at law or answer in equity. This is the meaning of the term in Scotch law. Ersk. Inst. 4, 1, 66. However, it has been held that the filing of a demurrer is not the making of a defense within meaning of the statute providing that, if no defense be made, the plaintiff cannot have judgment for any relief not specifically demanded, but, if defense be made, he may have judgment for other relief, under a prayer therefor. Union Light, Heat & Power Co. v. City of Bellevue, 284 Ky. 405, 144 S.W.2d 1046, 1047.
Half defense was that which was made by the form "defends the force and injury, and says," (defendit vim 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," (defendit vim et injuriam quando et ubi curia consideravit, et damna et quicquid quod ipse defendere debet, et dicit,) commonly shortened into "defends the force and injury when," etc. Gi1b.Com.P1. 188; 8 Term, 632; 3 Bos. & P. 9, note; Co.Litt. 127b.
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 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 dissolution, condonation is an absolute, adultery by the petitioner a discretionary, defense. Browne, Div. 30.
Defense is not something by means of which party who interposes it can obtain relief for himself. Crisman v. Corbin, 169 Or. 332, 128 P.2d 959, 964.
Defense, as respects right to counsel to conduct defense of one charged with crime, includes every step in proceedings from time of arraignment until acquittal or conviction. State v. Hudson, 55 R.I. 141, 179 A. 130, 135, 100 A.L.R. 313.
Defense also means the forcible repelling of an attack made unlawfully with force and violence, such as the defense of the nation in time of war. United States v. 243.22 Acres of Land in Village of Farmingdale, Town of Babylon, Suffolk County, N. Y., D.C.N.Y., 43 F.Supp. 561, 567.
In old statutes and records, the term means prohibition; denial or refusal. Enconter le defense et le commandement de Toy; against the prohibition and commandment of the king. St. Westm. 1, c. 1. Also a state of severalty, or of several or exclusive occupancy; a state of inclosure.
Affidavit of Defense
See Affidavit.
Affirmative Defense
See that title.
Equitable Defense
See that title.
Frivolous 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, C.C.S.C., 128 F. 182.
Legal Defense
(1) A defense which is complete and adequate in point of law. (2) A defense which may be set up in a court of law; as distinguished from an "equitable defense," which is cognizable only in a court of equity or court possessing equitable powers,
Meritorious Defense
One going to the merits, substance, or essentials of the case, as distinguished from dilatory or technical objections. Cooper v. Lumber Co., 61 Ark. 36, 31 S.W. 981.
Partial Defense
One which goes only to a part of the cause of action, or which only tends to mitigate the damages to be awarded. Carter v. Bank, 33 Misc. 128, 67 N.Y.S. 300.
Peremptory Defense
A defense which insists that the plaintiff never had the right to institute the suit, or that, if he had, the original right is extinguished or determined. 4 Bouv. Inst. No. 4206.
Personal Defense
In negotiable instruments law. A defense which, though not good as against a holder in due course, is good against certain parties, because of their participation in or knowledge of certain transactions or facts from which such defense arises. Such defenses include all defenses that are not real or absolute defenses. Bauer and Simpson, Law of Business, 2d Ed., p. 329.
Pretermitted Defense
One which was available to a party and of which he might have had the benefit if he had pleaded it in due season, but which cannot afterwards be heard as a basis for affirmative relief. Swennes v. Sprain, 120 Wis. 68, 97 N.W. 511.
Real Defense
In negotiable instruments law. A defense inherent in the res and therefore good against anyone seeking to enforce the instrument, even a holder in due course. Real defenses include illegality, incapacity, forgery, material alteration, nondelivery of an incomplete instrument, and fraud in the inception. These defenses are good even against a holder in due course because, where they exist, no contract was formed. Bauer and Simpson, Law of Business, 2d Ed., p. 330.
Sham Defense
A false or fictitious defense, interposed in bad faith, and manifestly untrue, insufficient, or irrelevant on its face.
Self Defense
See that title.
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That's the definition of DEFENSE in Black's Law Dictionary 4th Edition – Legal dictionary – Glossary of legal terms. Courtesy of Cekhukum.com.
