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PREMIUM LEGAL RESOURCES LEGAL FORMS ASK A LAWYER

DEFENCE

A forcible resistance of an attack by force.

A man is justified in defending his person and that of his wife, children and servants. 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.

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 such as robbery.

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 such as burglary or arson, this justification can only take place when the party in possession is wholly without fault. It is in general lawful to oppose force with force, when the former is clearly illegal.

Pleading, Practice. 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.

Defence also signifies a justification; such as, the defendant has made a successful defence to the charge laid in the indictment.

The Act of Congress of April 30, 1790, acting upon principles adopted in all the states, enacts 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 required, 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.'

Defences in equity may be classed in two divisions; dilator and peremptory. Matters of peremptory or permanent defences may be also divided into two sorts.

1st, those where the plaintiff never had any right to institute the suit. E.g.: That the plaintiff had not a superior right to the defendant; That the defendant has no interest; That there is no privity between the plaintiff and defendant or any right to sustain the suit.

Second, those that insist that the original right, if any, is extinguished or determined; E.g.: When the right is determined by the act of the parties; When it is determined by operation of law.

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