rION

EXECUTION 431 EXECUTOI,

unexe­
as been
cause to be made out of the goods, or lands, Mandamus· execution. Enforces payment
Ir .
or both the amount of the claim. of a judgment against a municipality. See
Applies to p~rson"lty, realty, chattels real, and further MANDARE, Mandamus.
:e money
chases in possession. May be concurrent with an at-. Sequest7-ation. Reaches the revenues of a
ion.
tachment in executien. A single fieri facias mayex­
nent of haust the persenalty of t.he debtor, and an alias fieri
corporation, a life-estate, or the property of
, of an facias bl> issued to sell his realty. But an alias fieri an absconding debtor. See SEQUESTRATION, 2.
facias may denQte a second or new levy upen either Capias ad sati.9faciendum, that you take
!ho h!l8 personalty Qr realty. A sale of realty upon a single for satisfying. Process under which the of­
fie";' facias may also be by express autherizatien from
in dis­ ficer arrests and detains the debtor till the
the debtor.l
lined a Levari facias (abbreviated lev. fa.), that judgment is satisfied. See CAPERE, Capias.
1, from you cause be levied -out of the land speci­ Testatum execution, certifies that ' the
l! cred­ fied. Used to collect a charge upon land: debtor has property in another coucty. Is­
as, a mortgage, mechanic's lien, municipal sues into another county than that in which
amand' claim, taxes, and the like. the record remains. See TESTIS, TestatullJ.
fsteriaJ May issue after a scire facias has been determined Writs and precesses of execution are: those which
point out speCifically the thing to be se~ed, and those
judg- in favor of the creditor, as, after judgment on a scire
which cemmand the officer to make Or levy certain
facias upen a mortgage.' See AnD&'ID"
sums of money out of the property of a party named.
Id ap­ Venditioni eaJponas (abbreviated vend. ex.), In the first class the officer has no discretion, but must
III t for that you expose for sale - realty embraced do preCisely what he is commanded. Therefore, if the
; him..3 in a levy made under a preceding fie1-i facias, court had jurisdictien to issue the writ it is a protec­
and condemned under proceedings in ex­ tion to the officer. In the second class the efficer must
e rec­ determine at his own rlsk whether the property he
'1W, to tent, q. v.
propeses to seize Is legally liable to be taken. For a
Regarded as a. completion of a previous execution,
mls take he is responsible to the extent of the injury.
by which the preperty is appropriated, not as an orig­
lW: " ·it As to this he exercises judgment, and discretion - as
inal or independent preceeding.'
ment. 6 to. who is the Qwner of the property, the kind that may
,ded to
Attachment-execution. Reaches a chose be taken, and the quantity.l
' goods in action, money and other property in the If a writ be sued out of a court ef competent juris­
Dosses· hands of a stranger, to which the defendant diction, directing an officer to seize specifically de,
scribed property, as in adIhiralty, replevin, or eject·
has no present right of possession; also

I
which ment cases, it is a protection to thA officer, when he is
called an " execution-attachment." See AT­ sued in trespass for executing it. If, however, it in
e rule
ve. TACH,2. general terms authorizes him to seize property, with·
to be­ Lt'berari facias, that you cause to be de­ out a specific deSCription, he acts at his own risk as
mentj livered - to the creditor, such portion of the regards the ownership of the property.' I f
been. See JURTSDICTION, 2, COnClll're.ntj LEVY, 2; MINIS­
premises, not sold under a previous levari
; may TERIAL, 1; WRIT.
facias, as will satisfy the claim, according to EXECUTOR. He to whom acotller com­
'6 re- ' the v£uation of the inquest, to hold ~s Us mits by wilt the eX9Cution of his ;Jast will
own free tenement. See EXTENT, 2. and te,tament.3 Feminine form, executrix.
per­ Elegit, he has chosen. Delivers ohattels Correh,tive, testator, testatrix.
pro­ to the creditor at an appraised value, and, if He so closely resembles an "administrator" that
they are not sufficient, then one-half of the that term will not amount to. a substantial misdescrip­
rou defendant's freehold, till the rents and p. ,fits tion in a deed er prose~on. '

'. J.
1 pay the debt.
Then plaintill "elected" this writ, rather than a
fieri facias, or a levari facias. which last writs gave
sctisfactlon only to the extent of chattels and present
prOfits of lands. Authorized by statute of Westmin­
Acting executor., Such executor, of two
or more, as actually performs the duties of
the trust.
(t General executor. An executor whose
~so power is' unlimited as to ti me, place, or sub­
ster 2, c. 18. Prior thereto, possesslor of land could
, S. ·ect-matter. )}Special executor. An exec­
not be taken, the feudal 'principle I ,ing that service
,./ was not transferable to a stranger. The writ is still in utor who s~ves for a limited time, in a
use, enla.rged or narrowad in operation. 3 particular place, or as to a part of the esta teo
v,
, See 3 BI. Com. 417. 1 Buck 11. Colbath, 3 Wall. 343-44 (1865), llliller, J.
• Mitchell 11. St. Maxent's Lessee, 4 Wall. 243 (1866). , Sharp v. Doyle, 102 U. S. 689 (1880), llliller, J .
1 a BI. Com. 418; 2 id. 161; 4 Kent, 431, 43B; Hutchin­ "2 Bl. Com, 503; 1 Ga. 330; ~5 Md. 194; 21 Wend. 436.
Bon 11. Grubbs, 80 Va. 254 (1885); 3 Ala. 561; 10 Gratt. 60 Barb. 175; 5 Hun, Z1; ~ Humph. 458.

082. 'Sheldon 11. Smith, rt7 Mass. 35-36 (1867), cases; ib.4<11.

 . DENARIUS DEI 342 DEPARTMENT

Demurrer to interrogatory. The rea­ legislative, the executive, and the judicial thE
son a witness offers for not answering a par­ departments. act
. ticular question among interrogatories. In our system, it is important that these depart­
ments be kept separate, that one be not allowed to to
DENARIUS DEI. L. God's penny; ma
encroach upon the domain of another.!
money given to the church or to the poor;
While a general separation has been observed be­
earnest-money, q. v. tween the different departments, so that no clear en­ ma
DENIAL; See DEFENSE, 2. croachment by one upon the province of the other has ma
been sustained, the legislative department, when not jud
DENIZEN.l An alien born who has ob­
restrained by constitutionul provisions and a regalu E
tained ex donatione regis letters-patent to EXl
for certain fundamental rights of the citizen which
make him a subject.2 are recognized in this countly as the basis of all gov· Mil'
Whence denizenize, denizenation or denization, Sand ernment, has acted upon everything within the rangEr' ]
denizenship . The crown denizenizes; parliament con­ of civil government. 2 tio:
sents to naturalization. The executive business of the general government, tio)
A denizen is in a kind of middle state between an under a permission rather than a mandate of the Con­
alie;' and a natW'al-born subject,..and pa.rtakes of 1
stitution, is distributed to seven executive" depart­
both. He may take lands by purchase or devise, but . ments" of equal grade. {fe!:
not by inheritance-for the parent has no inheritable . 'lministration of the duties of thesC3 respective de­ me:
')Iood.' But since 1870, in England, an alien may hold pa~. nents is committed directly to a "secretary" wh
and dispose of property as a natW'al-born subject. or "head," who, with his principal a8sistants, is ap·
In South Carolina the status seems to have heen
the:
pointed by the President as chief executive, with the
created by law. . advice of the Senate. pen
DENOUNCEMENT. In Mexican law, The· departments are designated as of - the inte­ his
a judicial proceeding equivalent to the in­
quest of office at common law. 6
rior,' justice,' the navy,6 the post-office,8 state,7 the
treasury,' and war.' The department of agriculture 10
is of subordinate grade.
J
I cou:
2.

DENTIST. See CARE;.MECHANlO; r..IY- The head of a department is required to exercise

In
If th
BIelAN. J
judgment and discretion in administering tbeconcerns may

(( DE1.~. See ADMISSION, 2; DEFEN~ 2 ;

TRAVERSE.
. DEODAND.s Any personal chatte
of his office. He exercises his own judgment in ex:­
pounding the laws and resolutions of Congress under
wblch he is to act. If he doubts, he may roll· on the
attorney-general for counsel. If the Supreme Court
TION.
3.
cedE
which was the immediate cause of the death Should cliffer with him as to the construction to be .anot
of a rational creature. j 'placed upon any of these laws it would pronounce forn
The chattel, whethe'r an animal or inanimate ob­ judgment accordingly. But the Interference of the In
ject, was forreited to the king, to be applied to relig­ courts with the performance of the ordinary duties of pa.rty
Ions uses. Designed, originally, as an expiation for the ex:ecutive departments wo~d.. be prod';'$tive of fense
the souls of such persons ~s were snatchell away by nothing but mischief - such power was never in· calle,
sudden death. :u: any animal killed a person, or if a tended to be given to them. . . The court by man· tion.
cart ran over him, It was to be forfeited.- in part, damus may direct the" doing of a purely min~sterial ~
mratl
also, as pUllisbment for the supposed negligence in
the owner. If the thing was in motion, as, a cart with
act, but not the exercise of a duty requiring judgment
and discretion."
I ing fr
W
its loading, all that moved was forfeited; if not in The heads of departments are the President's au­
motion, then only the pa rt which was the immediate
cause of the death. It muttered not whether the
thorized assistants in the performance of his "ex:ecu­ J .case
has

,t
tive " duties, and their official acts, promnlgated in I
owner was concerned In the killing or not. The right OCt
to deodands, in time, was granted to the lords of 1 See Mabry v. Baxter, 11 Heisk. 689--90 (1872). joindE
manors as a franchise. a • ffIaynard v . Hill, 125 U. S. 205 (1888). As to the in­ tion c
Abolished by 9 and 10 Vict. (1846) c. 62. dependence of the departments of government, see 21 arise .
DEPART. See DEPARTURE. A.m . Law Rev. 210-27 (1887), cases. ..partie
DEPARTMENT. (Adj. Departmental.) • R. S. § 437: Act 3 March, 1849. 4J forsan
The departments of government are the • R. S. § 846: Act 24 Sept. 1789.
• R. S. § 415: Act 80 April, 1798.
'Ru
a R. S. § 388: Act 8 lI'lay, 1794.

1 F. deinzein, a trader" ·within " the privilege of a • R. S. § 1!l9: Act 27 July, 1789. • Mil
(1883).
city franchise: deinz, wltbin,-ffireat. • R. S. § 233: Act 2 Sept. 1789. 'Bw
• 1 Bl. Com. 874; 6 Pet. 116, note.
• R. S. § 214: Act 7 Aug. 1789. 'Ble
'Webster's Dict.; 1 Bl. Com. 374.
lOR. S. § 520: ·Act 15 May, 1862.
( 1 Bl. Com. 374.
1l Decatur v. Panlding, 14 Pet. 515-17 (1840). Taney,
~- 'Un'
" Cowen
, [Merle v. Mathews, 26 Cal. 477 (1864).
C. J.; United States v. lIfacdaniel, 7 id.*15 (i83S); Ken­ 100(181
'L. deo·dandum, given to God.
dall v. United States, 12 id. 610 (1688); Litchfield v.

~
'GOI
• [1 Bl. Com. 300. Register and Receiver, 9 Wall. 577 (1869); Carrick v.
• S B.
• 1 Bl. Com. 300-2. Lamar, 116 U. S. 426 (1888), cases. ­ .'1 C1

"

·1

=-­
 '.DIvilRALTY
lizance II of all ci'7i.l~
jurisdiction; savlilg
1. common·law rem­
npetent t<> give it." 1
.roceeding in rem to
common-lawcourt.
pplicable to enforce
sonam, though such
yo be commenced by
i, limits the powers­
egardS cases arising
'aters connecting said
!Ssels of twenty tons
icensed for the coastr
lerce between places­
a jury trial if either
;ion is expressly made
as may be given by
;diction granted by the
itrict courts. JI
" extends to all con­
essentially maritime:
onds, con tracts' of af­
conveyance of passen­
wharfage, agreements­
:ssels, damages by the
i of materiu.l-men and
t of ,ships belonging to
!;ates, and the wages of
,rine torts and injuries,
other personal injuries,
lage, illegal seizures or
cy, illegal disposition or
he owners of ships, con­
rs as to the employment
~ ships, cases of salvage
lIltional courts, As orig­
he appropliate tribunals
'eigners.o
:ollisions on the high seas
foreigners of diJferent
.ges for death by negli­
jurisdiction of the vessel
) courts: the H instance n
The same judge presides
~s this double jurisdiction
"
sible evidence against the company, And yet the
325 (1868); Tbe Moses Tay­
plainly made in pleadings filed, or in the
circumstD.nce that it was made between ten and twenty
[ine, ib, 568 (1866),
\l' all. 569 (ISGG); The Eagle,
I See 1 Greenl. Ev, §§ 194--211; 1 Chitty, P!. 600,
.1877), Clifford, J. See "Iso
(1815), Story, J.; 4 Woods,
I The Plymouth, 3 Wall, 84--85 (1865) , cases.
9 Bened. 115 (18'1'0); The
1 (1685),
), Pa., 1881).
17-18 (1881), cases.
cases; Whiteside v, United States, 03 U. S. 247 (1876);
ADMISSION 35 ADMISSION
A .. mixed case" in admiralcy is a contract which Partial admission. In equity practice,
does not depend altogether upon locality as the test of delivered in terms of uncertainty, with ex­
jurisdiction; as, a contract for supplies, a charter­
. party, and the like; but not a tort begun on land and
planation or qualification. Plenary admis­
completed on navigable water,! nor a policy of insur­ sion. Without any qualification)
aDce upon a ship and its cargo against marine perils_' Admissions are treated as .. declarations against in­
The libelant propounds the substantive facts, prays terest" and, therefore, probably true. In the absence
tor appropriate relief, and asks for process suited to of fraud they bind all joint parties "-nd privies.'
the action, which is in rem or in personam . The re­ The credibility of an admission is a qup.stion of
spondentanswers those facts by admitting, denying, or fact. The admission of a right is not the same as vf a
declaring his ignorance thereof, ana alleges the facts fact. All the words must be considered. May be by
ot his defense to the case ' n:mde by the libel. The a document, conduct, predecessor in title, agent, at-­
proofs must substantially agree with ' the allegatiOns. torney, referee, joint party, trustee, officer, prinCipal,
There are no co=on-law ruies or variance or depart­ husband, wife,­
ure, The court grants relief on the case made out.' Where the act of the agent will bind the princlplll,
The criminal jurisdiction of the Federal courts does his admission respecting the subject-matter will also
not extend to the Great Lakes and their connecting bind him if made at the same time, and constituting
watersj &5, for example, the Detroit river. See SEA., part of the res gestre.·
High.' But an act done by an agent caru:~t be varied,
See further ACCIDENT; CANAL; COLLIEION, 2; CON­ qualified, or explained, either by declarations, which
SORT, 2; DAM.A.G.E S; FIDEJUSSOR; LA.KEs; LIBEL, 4; amount to DO more than a mere narrative of a. past
MARINEi l\'LutrrIMEj MONITION; NAVIGABLE; PETITORY; occurrence. or by an isoiated conversation held, or an
Rzs,2 ; SEA.; STIPULA.TION, 1; TIDE; TORT,2. isolated act done, at a later period_ The reason Is,
ADIDSSION.5 I, Receiving; reception. the agent to do the act Is not authorized to n"ITate
what he had done or how he had done it, and IiIs dec­
Wh ence admit, admissible, inadmissible, non­ laration is no part of the res gestre'
admission. For example, the declaration of the engineer of B
Used of assenting to, allowing, or receiv. train which met with an accident, as to the speed (l..t
ing-a claim, a will to probate, any other which the train was running, made f!"Oro ten to thirty
minutes after the accident occurred, Is not admissible
writing, or testimony. against the company in o.n action by a passenger to ­
Also applied to making a person a member recover damages for injuries sustainr.d. His declara.­ Ii
. of a privileged class or body, as of the legal tlon, after the accident had become a completed fact
profession, or of a partnership or association, and when he was not performing the duties of en ­
gine-er, that the train. at the moment the plaintiff was
See DELECTUS.
injured, was being run at the rate of eighteen miles
2. Recognition as fact or truth; acknowl· an hour, was not explanatory of anything in which he
edgment, concession; also, the expression in was engaged. It did not accompany the act from
which such assent is conveyed. which thA injuries in question arose. It was, In its
In evidence, applied to civil transactions, and to essence, the mere narrative of a past occurrence, not
facts, in criminal cases, not involving criminal intent.' a part of the res gestre - simply an assertion or repre­
( ( , In p leading, whn.t is not d enied ig taken as admitted. ) sentatioD, in the course of a conversation, as to a mp.t..
Direct or express admission. An ad­ ter not then pending, and in r espect to which his
miSSIon 'made openly and in direct terms. !,uthority M~ngineer had been fuil y exerted, It is not
to be deemed part or the res g'"~stCe simply because of
Implied admission. Results from an aqt the brief period Intervening between the accident and
done or undone; as, from character assumed, the making ot the declaration, The fact remains that
from conduct or silence. the occurrence had ended when the declaration in
Incidental admission. Is made in an­ question was made, and the engineer was not in the act
other connection, _or involved in some other -of doing anything that couid possibly afl'ecc it. If his
declaration had been made the nex t do.y after the ac­
fact admitted. cident, it would scarcely be clalmed that it was admis­
.Tudicial or solemn admission. So
minutes - an appreciable period of time - after the
progress of a trial, as to dispense with the
stringency of some rule of practice.
. '1 Green!. Ev, § 169,
S See Whart. Ev, Ch. xm.
• N e',v Engiand lns, Co. v. DlWham, 11 Wall. 1 (1870). • Story, Agency, § 134. See also 1 Greelll . Ev. § 113,
'Dupont de Nemours v. Vance, 19 How. 171 (16.'i6); 'Packet Company v _ Clough, 20 Wall, .540 (1874).
The Clement, 2 Curtis, 866 (1855), Strong, J.; American Lite Ins, Co. v, Mahone. 21 id,
• Exp. Byers, 32 F, R 404 (1887), Brown, J. 157 (1874); BalTeda v. Silsbee, 21 H ow. 1C~5 (1858),
• L. ad-mittere, to send to: receive,
'I Greelll. Ev. § 170.
Xenia Nat Bank v. Stewart, 114 ia. 22il (1885), cases_
 DEFEAT 327 DEFENDA.c"lT

~CE
time with another conveyance, containing DEFECT. Under the covenant in a
conditions upon the performance of which charter-party that the vessel is .. tight,
:rson to
prom­
the estate created may be "defeated" or staunch, and strong," the owner is answer.
lded, or totally undone. l able for latent as well as for visible defects,
ie debt A bond fu1" a reconveyance upon the pay­ whereby the cargo is damaged. l
~ was to m'3nt of a specific SUIll, at a specified time, See CA.VEATj CHALLENGE; CUREt 2.
made at the same time and of the same' date DEFENCE. See DEFENSE.
n to do DEFENDANT. One who is called upon
age, has as a deed of conveyance. 2
Forme"ly, every mortgagor enfeoffed the mort;.. in a court t o make satisfaction for an injury
It of an­ gagee who simultaneously executed a deed of defeas­
done or complained of. 2 ~
ance, considered a part of the mortgage, whereby the
FRAUDS, A person sued or prosecuted; a respondent.)
feoffment was rendered void on repayment of the
In the rules in admiralty, framed by the Supreme
:omplete money at a certain day. But things that were merely
Court, .. defendant" is used indifferently {pr a respond­
.executory, or to be completed by matters subsequent,
ent ina suit in perscmam and for a clalmant in a suit
'could always be recalled by defeasances made subse­
to do quent to the time of their creation. I
in r.;.I1\.' .
\ court It is not of the essence of a mortgage that there Co-defendant. A joint or fellow de­
should be a defeasance; and there may be a defeas­ fendant.
the time ance of a deed of conveyance without constituting it a Defendant above or defendant in
'" at the mortgage. The essence of a defeasance is to defeat error. The party against whom a writ of
t entered the principal deed and make it void ab initio, if the
eITor is taken.
t." • condition be performed.'
y neglect A defeasance made subsequently to an executed Material defendant. In equity, a de­
contrnc.t must be part of the original transaction. At fendant against whom relief is sought; op­
y be non­ law, the instrument must be of as high a nature as the posed to nominal defendant.
3e shown, .principal deed. Defeasances of deeds conveying realty Where a code provided tha.t a bill in equlty should
are subject to the same rules as such deeds themselves, be filed in the district where the defendants or a mate­
is said to as to record and notice to purchasers; but in some rial defendnnt resides, It was held that the object was
, duty. States notice of the existence of a defeasance, to be to discriminate between defendants whose attitude to
( the par­ binding, must be derived from the public records.­ the case does, and does not, make them real partici­
emJ).nd in When an absolute deed is shown to have been orig­ pants in the litigation. that a material defendant was
e dec\ara­ inally made as security for a loan of money, a court one who is really interested in the suit, and against
1 a d.ifrer­ ()f equity will treat it as a mO'rtgaae, and allow the whom a decree is sought.­
, Judicial. grantor to redeem the estate, on the groUl\d that the As employed in sections of a code relating to juris­
against defeasance was omitted from the deed by fraud or diction, the word" defendants" was held to mean not
9, that a mistake.' nominal defendants merely, but parties who had a
But to reduce a conveyance to a mortgage the de­ real and substantial interest adverse to the plaintiff,
l he £les
feasance may be required by statute to be in writiilg, and against whom substantial relief was sought; nnd
duly acknowledged and recorded.­ that to decide otherwise would encourage colorable
~id; past 2. A defeasance to a bond, recognizance, practices Itlr defeating juriS\llction in the particular
s, bonds, or judgment recovered is a' condition which, class of cases.'
In a judgment, .. defendant" may be a col\ecth-e
when performed, defeats or undoes it, in the
terni. emb..acing all who by the record are liable
ION,2. same manner as a defeasance to an estate. under the judgment.'
undoing, The" condition" of a bond is always inserted in A garnishee is a .. defendant in the action," who, In
depriva­ the bond or deed it.self i a" defeasance n is made by a
pursuance of a statute, may be restrained trom dis.­
separate, and frequently by a subsequent, deed. This, posing of property to the injury of the attaching
like the condition of a bond, when performed, disin­ creditor.'
lce or de­ ~wnbers the obligor's estate.' See CONDITION.
In the Massachusetts Gen. Sts. c. 146, § 38, provid­
litting of DEFEAT. See DEFEASANCE; CONDITION. ing that, If an execution has not been satisfied, the
court, .. upon petition of the defendant," may order a
~t as inde­ stay, if the petitioner gives the adverse party security
1 [2 B\' Com. 327.
for the prosecution of the review, refers to the party
3.ized: • [Butman v. James, 34 Minn. 550 (1885), Berry, J.; 4
Pick. 852.
,he same • Flagg v. Mann, 2 Sumn. 540 (1837), Story, J. 1 Hubert v. Reckoagel, 18 F. R. 912 (1882)•

58S. - See 21 Ala. 9; 3 Mich. 482; 7 Watts, 261, 401; 13 Mass. • [3 Bl. Com. 25.]
t ante. 443; 40 Me. 381; 43 id. 206; 14 Wend. 63; 17 S. & R. 70; • Atlantic Mutual Marine Ins. Co. v. Alexander, II
\. See also II Washh. R. P. 489. F. R. 281 (1883).
398. • 2 Kent, 142; Butman v. James, 34 Minn. 550 (1886). - Lewis v. Elrod, 38 Ala. 21 (1861), Walker, C. J.
(1876). See - See PeUl\. Act 8 June, 1881; Mich. R. S. 261; Minn. • Allen v. Miller, 11 Ohio St. 378 (1860).
. Cent. Law i!t. L., 1878, 34, § 23 . • Claggett v. Blanchard, 8 Dana, *43 (lsa9).

lts; 21 Am. '2 Bl. Com. 842; 43 Me. 371; 14 N. J. L.864. , Almy v. Platt, 16 Wis.•169 (1862).

 DEFENSE 328 DEFENSE

DE
against whom the judgment sought to be reversed is the violence of the assault before he turns upon his

rendered, not to the defendant in the original action,l

assailant; . . he must fiee as far as he conveniently
cause
Ordinarily, a municipaJ corporation is not affected
can, hy reason of some wall, ditch, or other impedi­
being
by .. law willch speaks in general terms of defendants,
ment, or as far as tlle fierceness of the assault will
Adj
unless expressly brought within the provisions,'
permit, for it may be so fierce as not to allow him to
I.ctsw:
Compare LITIGANT ; P.ARTY; PLAINTJFJ'; RESPOND-
yield a ' step without manifest danger of his life o~
I.re thl
ENT; SUITOR. See DELICTOM, In pari, etc.
enormous hodily harm, and then in ills defense he ma,.
to mal
DEFENSE, or DEFENCE.3 1. ~
kill his assailant instantly. ' taking
&nce of an attack i resistance with force of But no one may revenge himself by striking an un­ him.
ne~essary blow, as, when all danger is passed, nor cansin;
an attack made with force or violence. strike when the assault is technical and triviaJ ,l I publiCI
Self-defense. P rotection of person or , The principles of the law of self·defense may be
~.
FreCOD
property from injury.
stated in three propositions: (1) A person who, in the
weapo:
The defense of one's self, or the mutwJ.I and recip­
lawful pursuit of his business, is attacked by another
battelJ
rocal defense of such as stand in the relation of hus­
under circumstances which denote an Intention to take
weapo)
band and wife, parent and child, master and servant,
his life, or to do illm some enormous bodily harm, may
voking
is a species of redress of private injury which arises
lawfully kill the assailant, provided he uses all the
words
from the act of the injured party. In these cases, if
means in ills power, otherwise, to save his own life, or
purpos
the party Wroself, or a person in one of these rela­
prevent the intended harm,- such as retreating as far
See I
tions, be forcibly attacked in his person or property. it
as he can, or diso,bling ills adversary without killing
Imrn:OL
is lawful for illm to repel force w ith force. . . The
him, if it be in his power. (2) When the attack upon
2. '1
law in tills case respects the passions of the human
him is so sudden. fierce;a,nd violent that retreat would
suffici
mind and makes it lawful in a man to do illmself tilat
not diminish but increase his da nger, he may instan tly

immediate justice to which he is prompted by nature,

kill ills adversary without retreating at all. (3) When,
justif~
And willell no prudential motives are strong enough to
from the nature of the attack, there is reasonable
cause
restrain. It considers that the future process of the
ground to believe that there is a design to destroy his
Au
law is by no means an acJequa,te remedy for injuries
life or commit any felony upon his person, killing the
ing in
accompanied wit!l force; since it is impossible to say
as sailant will he excusable homicide, a.lthough It
Whe;
to what wanton lengths of rapine or cruelty outrages
should afterward appear that no felony was intended.'
Ia.ratior
of this sort might be carried unless it were permitted
The law of self·defense is a law of necessity, real Or

sonable
a man immediately to oppose one violence with an·
apparently real. A party may act upon appearances,
plea; el
other. "Self·defense," therefore, as it is justly
though 'they turn out to have been false. Whether
fault, q,
called the primary law of nature, so it is not, neither
they were real or apparently real is for t.he jury, in a
fies not
can it be in fact, taken away by the law of society.
criminaJ case, to decide upon consideration of all the
its pop,
. . Care must be taken that the resistance does not
circumstances out of which the necessity springs. It
(French
exceed the bounds of mere defense and prevention:
the jury should find from the evidence tho,t the cir·
plaint,
tor then the defender would Wros el! become an ag­
cumstances were such as to excite the fear of a rea­ generaJ
gressor.­ sonable man, and that the defendant, acting under the

action!
Homicide in self-defense, upon a sudden affray, is
influence of such tear, killed the aggressor to prevent

also excusable, This species of self-4#ense must be

the commission of a telony upon his person 0,
distinguished from such as Is caJculatJ'a to illnder the , erty, he would not be' criminally responsible for his
prop-
mainta!
The
perpetration of a capita.! crime. This is that wherehy death, although the circumstances might be insuffi­ ing ou'
a. man may protect Wrosel! from an assault or the cient to prove, by a preponderance of evidence, "

which
like, In the course of a sudden broil or quarrel, by that the aggressor was actually about to commit .. plainti:
kIlliDg him who assa.ults him. , . The right of nat­ felony.'
Defer
ural defense does not imply a right of attacking: for, The right of self·defense does not imply the right of
andparl
Instead of atta,eking one another for injuries past or attack, and it w1ll not a vail in any case where the dif­
all1davit
impending, men need only have recourse to the proper ficulty is sought or induced by the party himself. On
tribunals of justice. They cannot therefore legally the other hand, to justify killing an adversary on tills Def!
exercise this right of preventive defense but in sudden ground it is not necessary that the danger appre­ statem
and violent cases, when certain and immediate suffer­ hended should be real or actually impending. It is ' defensl
Ing would be the consequence of wa iting for the assist­ only necessary that the defendant should have had davit 0
ance of the law. Wherefore, to excuse homicide by reasonable cause to apprehelld that there was an im­
the plea of self·defense it must appear that the slayer mediate design to kill or to do him some great bodily 1 l:ltate

had no other possible (or at least probable) means of harm. and that there should have been rea.sona.ble State v , '
escaping from ills assallant.· . . The law requires , Cam
that the person who kills another in ills own defense cases, E
1 4 Bl. Com. 184-85, 7; 71 id.
should have retreated as far as he safely can to avoid
'Common weaJth v. Selfridge, Sup, Ct, Mass. (1806), Ky. 86; 1
1 Leavitt v. Lyons, 118 Mass. 470 (1875). Parker, J . Same case, Whart. Homicide, App, No.1; 403; 13 :
• Schuyler County v. Mercer County, 9 ill. 24 (1847). HoI'. & T., Cases On Self-Defense. 17; 2 Am. Cr, R. 287-G9; 1,
• F . d efense: L, defensa: defendere, to strike down (Hawley), 259. Rep, 288.
or away, ward off, repel. Mid. Eng. defence. • People v. Flanagan, 60 Cal. 4 (1881), McKee, J.; 1)2 • Unite
• 3 BI. Com. 3; 4 id. 186; 1 id. 130. id. 208, 807; 59 id. 251; Unlted States v . Wiltenberger, ' BBI. ,
• 4 Bl. Com. 183-84. 8 Wash, 521 (1819). :d. 148 ; 1
• [Utab
 DEFENSE
lis
;ly £ause to apprehend immediate danger of such design
iI­ being accomplished.'
ill r Adjudicated cases hold that among the slayer's
to ..cts which abrogate or abridge his right of self-defense
I
Ot" are the following: 1. Devices to provoke the deceased
'T to make an assault which will furnish a pretext for
taking his life or inflicting serious bodily injury upon
n­ him. 2. Provocation of the deceased into a quarrel,
or causing the tatal affray; but mere words or libelous
be
./
publications <.hJ not amount to such provocation. a.
Preconcert win, the deceased to fight him with deadly
1e
er [
-,
weapons. 4. Commencing an attack, assault, or a
battery upon the deceased. 5. Going with a deadly
Ie weapon where the deceased is, for the purpose of pro·
,y voking a difficulty or bringing on an affray, and by
Ie words OI' acts making some demonstration of such
or purpose calculated to provoke them.'
lor See ARMS; ASSAULT; BATTERY; FORCE; HOMICIDE;
.g IllMEDUTE; RETREAT; THREAT.
>n 2. That which is ollered by a defendant as
Id
Iy
sufficient to defeat a suit - by nenying .
n, justifying. or confessing and avoiding. the
Ie cause of actioD.
is A term of art used in common-law plead­
.e
ing in t he sense merel y of ./ d eui,d." 3
It
'When the plaintiff bath stated his case in the dec·
laration, it is incumbent on the defendant within a rea·
)1"
sonable time to make his "defense," and to put in a
s,
plea; else the plaintiff will recover judgment by de­
..
lr
Le
fault, q. 1J. Defense, in its true legal sense, signi­
fies not a justification, protection, or guard, which is
its popular signification, but an opposing or denial
[f
(French, defender) of the truth or validity of the com­
plaint. It is the contestatio litis of the civilians, a
general assertion that the plaintiff hath no ground of
action, which assertion is afterward extended and
maintained in the plea.' Compare TRAVEasE.
~~
The r ight possessed by a defendant, aris­
• ing out of the facts alleg ed in his pleadings,
i' w hich either partially or w holly def eats the
_ plaintiff's clairn. 6
Defenses, In civil procedure, are stated with fullness
and particularity in answers to bills and libels, and in
a.ffldavits of defense filed to affidavits of chum.
"s Defense, affidavit of. A sworn written
,­ statement of the facts which constitute the
s defense in a civil action; also called " affi­
d davit of merits." Opposed, affidavit of claim.
L-
v­ ., 8tate 1J. Johnson, 76 Mo. 122, 126 (1882), Norton, J.;
a State 1J. Umfried, ib. 408 (1882); 69 id. 469.
• Cartwright 1J. State, 14 Tex. Ap. 486, 499 (1883),
cases, Hart, J.; Reed v. State, 11 ill. 517(1882); 70 Ala.
7; 71 id. 8313-S7; 32 Conn. 83; 64 Ind. 340; 89 id. 195; 80
Ky. 36; 14 B. Mon. 103, 614; 38 Mich. 270, 732; ·55 Miss.
403; 13 Johns. 12; 89 N. C. 481; 29 Ohio Se. 186; 38 Pa.
267-C8; 101 id. 823; 45 Vt. 308; 2 Bish. Cr. L. 877; 12
Rep. 268.
• United States 1J. Ordway, 30 F. R. 32 (1887).
· 8 BI. Com. 206. Sec 83 Ind. 449; 8 How. Pro 442; 10
.:d. 148; 24 Barb. 631.
• [Utah, &c. R. Co. 1J. Crawford, 1 Idaho. 773 (1880).
329 DEFENSE
The practice which requires affidavits of claims and
defense has been systemized in Pennsylvania to a de­
gree of completeness scarcely known elsewhere. The
subject is usually discussed in connection with the in·
quiry, Wbat are the essentials of a .. sufficient" affi­
davit of defense. In that State the practice originated
in an agreement between members of the bar at Phil­
adelphia, signed September II, 1795.' After that, stat­
utes extended the practice, until it became general.'
Yet the courts, by mere rule, could have required de­
fendants to file a statement of defense.'
The practice does not contlict with the right of trial.
by jury. If a defendant presents no defense to be
tried by a jury he cannot claim that p,-ivilege is de·
nied him. The affidavit is nothing more than a special
plea under oath - by which the defendant states the
facts of his case for the consideration of the court.
Trial by jury in civil cases ha" never involved the
right of the jury to decide the law of the case. That
the defendant is obliged to state his plea, or his de·
fense, under oath, is merely a means to prevent delay,
by falseh00d and fraud. Nor can it be objected, "hen
all the facts have been stated by the defendant which
he either knows Or is infonned of, believes and ex­
pects to be able to prove, tllat the court decides the
law arising upon the facts as stated. This is no moro
than the court does upon a demurrer, a special ver­
dict, a nonsuit or an issue In equity. The affidavit I.
oniya modern mode of making up the issue for the '
jury. And when, upon a statement of all the facts a
defendant can conscien tiously swear to, the court finds
that the law upon those facts is against him, clearly
he has no right to go before a jury. The court hus
then done no more than It would have a right to do by
Instruction to the jury when all the evidence is in, with
the advantage to the defendant that by his affidMit he
has made the evidence to support his own case.'
The object is to prevent delay of justice through
false defenses.' At the same tinle, the p,actice being
In derogation of the right of trial by jury, regulatioru.·
are to receive a strict construction.'
.TIle proce~e, being som~hat summary, the
plaintiff, in his affidavit, must have complied with
every requirement of the law; 7 otherwise, a judgment
given him, for IU insufficiency" in the matter relied
upon by the defendant, will be reversed, although that
matter is really insufficient.8
'Sellers 1J. Burk, 47 Pa. 844 (1864); Clark 1J. Dotter, 54­
ill: 215 (1867); Detmold1J. Gate Vein Coal Co., 3 W. N. C.
567 ro. S. D. C., E. D. Pa. , 1876).
• 2 Brig'htly, Purd. Dig. 1356, 1357, pI. 24, note d.
• Hogg v. Charlton, 25 Pa. 200 (1855); Harres 1J. Com­
monwealth, 85 ill. 416 (1860).
• Lawrence 1J. Borm, 86 Pa. 226 (1878), Per Curiam; 19·
id. ~7; 20 id. 384; Hunt 1J. Lucas, 99 Mass. 409 (1868),
Chapman, C. J.
• Wilson 1J. Hayes, 18 Pa. 354 (1852); Bloomer 1J. Reed.
22 id. 51 (1853).
'Yates 1J. Burrough of Meadville, 56 Pa. 21 (1867);.
Wall 1J. Dovey, 60 ill. 212 (1869); Boas 1J. Nagle, 3 S. &
R. 250 (1817).
, Knapp 1J. Duck Creek Valley Oil Co., 58 Pa. 185
(1866).
• Gottman 1J. Shoemaker, 86 Pa. 31 (1877).
 DEFENSE 330
The question of insufficiency is brought directly be·
tore the court by a rule on the defendant" to show
cause why judgment should not be e,ntered against
him for want of a sufficient affidavit of defense"­
the particulars of the alleged Insufficiency being at the
same time specified in writing and filed with the rule.
The court considers the facts set, out in the affidavit
and passes upon their legal sufficiency.' For this
purpose it takes the facts as true, not to be contra.
dlcted even by a record."
It is sufficient to set forth, in the affidavit - facts
showing a valid defense which can properly be estab·
lished; • - specifically, and at length, such facts a9
will warrant the inference of a complete legal de­
tense; ' - a substantially good defense;' - a prima
facie good and valid defense, •
The defendant must state the grounds and nature
of his defense, so that the court may judge how far it
will avail agamst the plaintiff's demand, if established
by proof.'
The facts are to be averred with reasonabie precis·
Ion; but the evidence by which the defendant will
prove them need not be stated" Nor need he meet
every objection which fine critical skill may deduce.'
While an allegation doubtfully stated or clearly eva.­
Give is to be disregarded, the defendant is, not to be
held to a rigor of statement so severe as to catch him
In a mere net ot form.'
The facts are to be averred with reasonable precis'
ion, and' with certainty to a common intent. Toward
sustaining the affidavit a reasonable intendment will
be given the language.'·
But no essential fact is to be left to inference; II
what is not said is taken as not existing. I> Further·
more, inasmuch as a party swearing in his own cause
is presumed to swear as hard as he can with a good
conscience," inferences, when justifiable, are not to be
pressed beyond the ordinary ~ea=g of the ~el'mB
employed."
A material ,fact which, if it actually exists, would
readily and naturally be expressly averred, must be
averred. 16
The practIce which requires affidavits of defense
is limited to obligatiOns for the payment of a certain
--.. sum of money. Hence, it does not apply inactions for
'Stitt v. Garrett, 3 Whart. 281 (1337); Comly v,
Bryan, 5 ill. 281 (1339); Marsh v. Marshall, 63 Pa. 896
(1866).
" Feust v. Fell, 6 W. N. C. 48 (1878); KIrkpatrick 11,
, Wensell, 2 Leg. Chron. 303 (1874).
'Lelbersperger v. Reading Bank, 30 Pa. 631 (1858).
f Bryar v. HarrisoIl, 87 Pa. 223 (1880).
• Thompson v. Clark, 56 Pa. 33 (1867).
• Chartiers R. 00. v. Hodgens, 77 Pa. 187 (1874),
'Walker v. Geisse, 4 Whart. 256 (1338).
• Bronson v. Silverman, 77 Pa. 94 (1874).
• Lawrence v. Smedley, 6 W. N. C.42 (Sup. Ct., 1878).
,. Markley v. Stevens, 89 Pa. 281 (1879); 77 ie!. 283; 89
ill. 261.
II Peck v. Jones, 70 Pa. 83 (1871).
,. Lord v. Ocean Bank, 20 Pa. 884 (1858),
II Selden v. Neemes, 4.'l Pa. 421 (1862).
,. Marsh v. Marshall, 53 Pa. 396 (1866).
.. Markley v. Stevens, 89 Pa. 281 (1879).
DEFENSE
torts, nor in actions upon contracts for the payment
of an uncertain sum, or where there is no standard by
which to liquldate the judgment.'
The d efendant is to make the affidavit, unless
cause, such as sickness or necessary absence, is shown
why he ca nnot make it. Then an agent, and perhaps
even a' stranger to the transaction, may make it."
When defendant avers facts on infonnation and [)e­
lief he must add that he expects to be able to prove
them or else set out specifically the sourCG of his in·
formation or the facts themselves 'upon which his
belief rests.' This affords a presumption that proof
can be made.' Positive averment of truth is enough.'
The practice does not permit the filing of a trUpple·
mentary affidavit of claim to obtain a judgment for
an insufficient defense. Such affidavit may be filed
for use as evidence at the trial; so, too, as to a supple·
mental affidavit of defense in reply to a supplementah
affidavit of claim. But the court will not consider thll
sufficiency of eitner affidavit.'
Should the court deem the defense set out fn the
original affidavit to be probably good but obscurely Or
otherwise defectively stated, it may allow a supple·
mental affidavit of defense to be filed. 7 Notice thereof
is to be given, to prevent surprise and delay at the
time for trial.
Ther", is no rule that such supplemental affidavit
must be confined to an explanation of the original de·
fense, and cannot set up a new and different defense;
such a course, however, is suspicious, and requires
that the new defense be closely scrutinized.·
Where judgment has been entered for want of a
sufficient affidavit of defense and the record shows It
to be according to law, a ' motion to take it off is ad·
dressed to the discretion of the court, and, in the
absence of statutory provision to the contrary, Is not
the subject of a writ of error.'
It would seem that an affidavit o~ ~fense, to.,.be.
~)
come part of the record, should be offered in ev!·
dence. 10
Dilatory defense. A. defense designed
to 'dismiss, suspend, or obstruct the prosecu­
tion of a claim, without touching upon the
defendant's "meritorious defense." See
MERITS.
, Borlin v. Commonwealth, 99 Pa. 46 (1331). See 89
ie!. 28; 00 id. 276.
I See City v. Devine, 1 W. N. C. 358 (1875); Clymer v.
Fitler, ib. 626 (1875); Blew v. Schock. ib. 612 (1875);
Crine v. Wallace, ib. 293 (1875); Burkhart v. Parker, 6
W. & S. 480 (1843); Hunter v. Reilly, 36 Pa. 500 (1360).
• Black v. Halstead, 89 Pa. 64 (1861); Thompson v.
Olark, 66 ie!. 33 (1867).
• Clarion Bank v. Gregg, 79 Pa. 384 (1875); Renzor v.
Supplee, 81 icl. ISO (1876).
• Eyre v. Yohe, 67 Pa. 477 (1871); Moeck v. Littell, 82
ill. 354 (1876).
• Anderson v. Nichols, 12 Pitts, Leg. J. 231 (1882),
'Laird v. Campbell, 92 Pa. 475 (188O).
• Callan v. Lukens, 89 Pa. 184 (1879), Per Curiam.
I White v. Leeds, 51 Pa. 187 (1885). See Act 18 April,
1874: P. L. 64; 2 W. N . 0.707.
II Maynard v. National Bank, 98 Pa. 250 (1881).