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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 ADMISSION 35 ADMISSION

lizance II of all ci'7i.l~ A .. mixed case" in admiralcy is a contract which Partial admission. In equity practice,
jurisdiction; savlilg does not depend altogether upon locality as the test of delivered in terms of uncertainty, with ex­
1. common·law rem­ jurisdiction; as, a contract for supplies, a charter­
npetent t<> give it." 1 . party, and the like; but not a tort begun on land and
planation or qualification. Plenary admis­
.roceeding in rem to completed on navigable water,! nor a policy of insur­ sion. Without any qualification)
common-lawcourt. aDce upon a ship and its cargo against marine perils_' Admissions are treated as .. declarations against in­
pplicable to enforce The libelant propounds the substantive facts, prays terest" and, therefore, probably true. In the absence
sonam, though such tor appropriate relief, and asks for process suited to of fraud they bind all joint parties "-nd privies.'
yo be commenced by 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
i, limits the powers­ declaring his ignorance thereof, ana alleges the facts fact. All the words must be considered. May be by
egardS cases arising ot his defense to the case ' n:mde by the libel. The a document, conduct, predecessor in title, agent, at-­
'aters connecting said proofs must substantially agree with ' the allegatiOns. torney, referee, joint party, trustee, officer, prinCipal,
!Ssels of twenty tons There are no co=on-law ruies or variance or depart­ husband, wife,­
icensed for the coastr ure, The court grants relief on the case made out.' Where the act of the agent will bind the princlplll,
lerce between places­ The criminal jurisdiction of the Federal courts does his admission respecting the subject-matter will also
a jury trial if either not extend to the Great Lakes and their connecting bind him if made at the same time, and constituting
;ion is expressly made watersj &5, for example, the Detroit river. See SEA., part of the res gestre.·
as may be given by High.' But an act done by an agent caru:~t be varied,
;diction granted by the See further ACCIDENT; CANAL; COLLIEION, 2; CON­ qualified, or explained, either by declarations, which
itrict courts. JI SORT, 2; DAM.A.G.E S; FIDEJUSSOR; LA.KEs; LIBEL, 4; amount to DO more than a mere narrative of a. past
" extends to all con­ MARINEi l\'LutrrIMEj MONITION; NAVIGABLE; PETITORY; occurrence. or by an isoiated conversation held, or an
essentially maritime: Rzs,2 ; SEA.; STIPULA.TION, 1; TIDE; TORT,2. isolated act done, at a later period_ The reason Is,
onds, con tracts' of af­ ADIDSSION.5 I, Receiving; reception. the agent to do the act Is not authorized to n"ITate
conveyance of passen­ 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'
wharfage, agreements­
:ssels, damages by the admission. For example, the declaration of the engineer of B
i of materiu.l-men and Used of assenting to, allowing, or receiv. train which met with an accident, as to the speed (l..t
t of ,ships belonging to ing-a claim, a will to probate, any other which the train was running, made f!"Oro ten to thirty
!;ates, and the wages of minutes after the accident occurred, Is not admissible
writing, or testimony. against the company in o.n action by a passenger to ­
,rine torts and injuries,
other personal injuries,
Also applied to making a person a member recover damages for injuries sustainr.d. His declara.­ Ii

lage, illegal seizures or . of a privileged class or body, as of the legal tlon, after the accident had become a completed fact
cy, illegal disposition or profession, or of a partnership or association, and when he was not performing the duties of en ­
he owners of ships, con­ gine-er, that the train. at the moment the plaintiff was
See DELECTUS.
rs as to the employment 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
~ ships, cases of salvage
edgment, concession; also, the expression in was engaged. It did not accompany the act from
lIltional courts, As orig­ which such assent is conveyed. which thA injuries in question arose. It was, In its
he appropliate tribunals In evidence, applied to civil transactions, and to essence, the mere narrative of a past occurrence, not
'eigners.o facts, in criminal cases, not involving criminal intent.' a part of the res gestre - simply an assertion or repre­
:ollisions on the high seas ( ( , 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..
foreigners of diJferent 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

.ges for death by negli­ to be deemed part or the res g'"~stCe simply because of

jurisdiction of the vessel


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

) courts: the H instance n from conduct or silence. the occurrence had ended when the declaration in

The same judge presides Incidental admission. Is made in an­ question was made, and the engineer was not in the act

~s this double jurisdiction


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
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),
minutes - an appreciable period of time - after the
\l' all. 569 (ISGG); The Eagle,

progress of a trial, as to dispense with the

stringency of some rule of practice.


I See 1 Greenl. Ev, §§ 194--211; 1 Chitty, P!. 600,

.1877), Clifford, J. See "Iso


. '1 Green!. Ev, § 169,

(1815), Story, J.; 4 Woods,


I The Plymouth, 3 Wall, 84--85 (1865) , cases. 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,
9 Bened. 115 (18'1'0); The 'Dupont de Nemours v. Vance, 19 How. 171 (16.'i6); 'Packet Company v _ Clough, 20 Wall, .540 (1874).
1 (1685), The Clement, 2 Curtis, 866 (1855), Strong, J.; American Lite Ins, Co. v, Mahone. 21 id,
), Pa., 1881). • Exp. Byers, 32 F, R 404 (1887), Brown, J. 157 (1874); BalTeda v. Silsbee, 21 H ow. 1C~5 (1858),
17-18 (1881), cases. • L. ad-mittere, to send to: receive,
cases; Whiteside v, United States, 03 U. S. 247 (1876);
'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 329 DEFENSE
lis
;ly £ause to apprehend immediate danger of such design The practice which requires affidavits of claims and
iI­ being accomplished.' defense has been systemized in Pennsylvania to a de­
ill r Adjudicated cases hold that among the slayer's gree of completeness scarcely known elsewhere. The
to ..cts which abrogate or abridge his right of self-defense

I
subject is usually discussed in connection with the in·
Ot" are the following: 1. Devices to provoke the deceased quiry, Wbat are the essentials of a .. sufficient" affi­
'T to make an assault which will furnish a pretext for davit of defense. In that State the practice originated
taking his life or inflicting serious bodily injury upon in an agreement between members of the bar at Phil­
n­ him. 2. Provocation of the deceased into a quarrel, adelphia, signed September II, 1795.' After that, stat­
or causing the tatal affray; but mere words or libelous utes extended the practice, until it became general.'

be
./
publications <.hJ not amount to such provocation. a.
Preconcert win, the deceased to fight him with deadly
Yet the courts, by mere rule, could have required de­
fendants to file a statement of defense.'
1e
er [
-,
weapons. 4. Commencing an attack, assault, or a
battery upon the deceased. 5. Going with a deadly
The practice does not contlict with the right of trial.
by jury. If a defendant presents no defense to be
Ie weapon where the deceased is, for the purpose of pro· tried by a jury he cannot claim that p,-ivilege is de·
,y voking a difficulty or bringing on an affray, and by nied him. The affidavit is nothing more than a special
Ie words OI' acts making some demonstration of such plea under oath - by which the defendant states the
or purpose calculated to provoke them.' facts of his case for the consideration of the court.
lor See ARMS; ASSAULT; BATTERY; FORCE; HOMICIDE; Trial by jury in civil cases ha" never involved the
.g IllMEDUTE; RETREAT; THREAT. right of the jury to decide the law of the case. That
>n 2. That which is ollered by a defendant as the defendant is obliged to state his plea, or his de·
Id
Iy
sufficient to defeat a suit - by nenying . fense, under oath, is merely a means to prevent delay,
by falseh00d and fraud. Nor can it be objected, "hen
n, justifying. or confessing and avoiding. the all the facts have been stated by the defendant which
Ie cause of actioD. he either knows Or is infonned of, believes and ex­
is A term of art used in common-law plead­ pects to be able to prove, tllat the court decides the
.e law arising upon the facts as stated. This is no moro
ing in t he sense merel y of ./ d eui,d." 3
It than the court does upon a demurrer, a special ver­
'When the plaintiff bath stated his case in the dec·
laration, it is incumbent on the defendant within a rea· dict, a nonsuit or an issue In equity. The affidavit I.
)1"
sonable time to make his "defense," and to put in a oniya modern mode of making up the issue for the '
s, jury. And when, upon a statement of all the facts a
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
defendant can conscien tiously swear to, the court finds
that the law upon those facts is against him, clearly
its popular signification, but an opposing or denial he has no right to go before a jury. The court hus
[f
(French, defender) of the truth or validity of the com­ then done no more than It would have a right to do by
plaint. It is the contestatio litis of the civilians, a Instruction to the jury when all the evidence is in, with
general assertion that the plaintiff hath no ground of the advantage to the defendant that by his affidMit he
action, which assertion is afterward extended and has made the evidence to support his own case.'
maintained in the plea.' Compare TRAVEasE. The object is to prevent delay of justice through
false defenses.' At the same tinle, the p,actice being

~~
The r ight possessed by a defendant, aris­
In derogation of the right of trial by jury, regulatioru.·
• ing out of the facts alleg ed in his pleadings, are to receive a strict construction.'
i' w hich either partially or w holly def eats the .TIle proce~e, being som~hat summary, the
_ plaintiff's clairn. 6 plaintiff, in his affidavit, must have complied with
Defenses, In civil procedure, are stated with fullness every requirement of the law; 7 otherwise, a judgment
and particularity in answers to bills and libels, and in given him, for IU insufficiency" in the matter relied
a.ffldavits of defense filed to affidavits of chum. upon by the defendant, will be reversed, although that
"s Defense, affidavit of. A sworn written matter is really insufficient.8

,­ statement of the facts which constitute the 'Sellers 1J. Burk, 47 Pa. 844 (1864); Clark 1J. Dotter, 54­
s defense in a civil action; also called " affi­ ill: 215 (1867); Detmold1J. Gate Vein Coal Co., 3 W. N. C.
d davit of merits." Opposed, affidavit of claim. 567 ro. S. D. C., E. D. Pa. , 1876).
L- • 2 Brig'htly, Purd. Dig. 1356, 1357, pI. 24, note d.
v­ ., 8tate 1J. Johnson, 76 Mo. 122, 126 (1882), Norton, J.; • Hogg v. Charlton, 25 Pa. 200 (1855); Harres 1J. Com­
a State 1J. Umfried, ib. 408 (1882); 69 id. 469. monwealth, 85 ill. 416 (1860).
• Cartwright 1J. State, 14 Tex. Ap. 486, 499 (1883), • Lawrence 1J. Borm, 86 Pa. 226 (1878), Per Curiam; 19·
cases, Hart, J.; Reed v. State, 11 ill. 517(1882); 70 Ala. id. ~7; 20 id. 384; Hunt 1J. Lucas, 99 Mass. 409 (1868),
7; 71 id. 8313-S7; 32 Conn. 83; 64 Ind. 340; 89 id. 195; 80 Chapman, C. J.
Ky. 36; 14 B. Mon. 103, 614; 38 Mich. 270, 732; ·55 Miss. • Wilson 1J. Hayes, 18 Pa. 354 (1852); Bloomer 1J. Reed.
403; 13 Johns. 12; 89 N. C. 481; 29 Ohio Se. 186; 38 Pa. 22 id. 51 (1853).
267-C8; 101 id. 823; 45 Vt. 308; 2 Bish. Cr. L. 877; 12 'Yates 1J. Burrough of Meadville, 56 Pa. 21 (1867);.
Rep. 268. Wall 1J. Dovey, 60 ill. 212 (1869); Boas 1J. Nagle, 3 S. &
• United States 1J. Ordway, 30 F. R. 32 (1887). R. 250 (1817).
· 8 BI. Com. 206. Sec 83 Ind. 449; 8 How. Pro 442; 10 , Knapp 1J. Duck Creek Valley Oil Co., 58 Pa. 185
.:d. 148; 24 Barb. 631. (1866).
• [Utah, &c. R. Co. 1J. Crawford, 1 Idaho. 773 (1880). • Gottman 1J. Shoemaker, 86 Pa. 31 (1877).
DEFENSE 330 DEFENSE

The question of insufficiency is brought directly be· torts, nor in actions upon contracts for the payment
tore the court by a rule on the defendant" to show of an uncertain sum, or where there is no standard by
cause why judgment should not be e,ntered against which to liquldate the judgment.'
him for want of a sufficient affidavit of defense"­ The d efendant is to make the affidavit, unless
the particulars of the alleged Insufficiency being at the cause, such as sickness or necessary absence, is shown
same time specified in writing and filed with the rule. why he ca nnot make it. Then an agent, and perhaps
The court considers the facts set, out in the affidavit even a' stranger to the transaction, may make it."
and passes upon their legal sufficiency.' For this When defendant avers facts on infonnation and [)e­
purpose it takes the facts as true, not to be contra. lief he must add that he expects to be able to prove
dlcted even by a record." them or else set out specifically the sourCG of his in·
It is sufficient to set forth, in the affidavit - facts formation or the facts themselves 'upon which his
showing a valid defense which can properly be estab· belief rests.' This affords a presumption that proof
lished; • - specifically, and at length, such facts a9 can be made.' Positive averment of truth is enough.'
will warrant the inference of a complete legal de­ The practice does not permit the filing of a trUpple·
tense; ' - a substantially good defense;' - a prima mentary affidavit of claim to obtain a judgment for
facie good and valid defense, • an insufficient defense. Such affidavit may be filed
The defendant must state the grounds and nature for use as evidence at the trial; so, too, as to a supple·
of his defense, so that the court may judge how far it mental affidavit of defense in reply to a supplementah
will avail agamst the plaintiff's demand, if established affidavit of claim. But the court will not consider thll
by proof.' sufficiency of eitner affidavit.'
The facts are to be averred with reasonabie precis· Should the court deem the defense set out fn the
Ion; but the evidence by which the defendant will original affidavit to be probably good but obscurely Or
prove them need not be stated" Nor need he meet otherwise defectively stated, it may allow a supple·
every objection which fine critical skill may deduce.' mental affidavit of defense to be filed. 7 Notice thereof
While an allegation doubtfully stated or clearly eva.­ is to be given, to prevent surprise and delay at the
Give is to be disregarded, the defendant is, not to be time for trial.
held to a rigor of statement so severe as to catch him Ther", is no rule that such supplemental affidavit
In a mere net ot form.' must be confined to an explanation of the original de·
The facts are to be averred with reasonable precis' fense, and cannot set up a new and different defense;
ion, and' with certainty to a common intent. Toward such a course, however, is suspicious, and requires
sustaining the affidavit a reasonable intendment will that the new defense be closely scrutinized.·
be given the language.'· Where judgment has been entered for want of a
But no essential fact is to be left to inference; II sufficient affidavit of defense and the record shows It
what is not said is taken as not existing. I> Further· to be according to law, a ' motion to take it off is ad·
more, inasmuch as a party swearing in his own cause dressed to the discretion of the court, and, in the
is presumed to swear as hard as he can with a good absence of statutory provision to the contrary, Is not
conscience," inferences, when justifiable, are not to be the subject of a writ of error.'
pressed beyond the ordinary ~ea=g of the ~el'mB It would seem that an affidavit o~ ~fense, to.,.be.
~)
employed." come part of the record, should be offered in ev!·
A material ,fact which, if it actually exists, would dence. 10
readily and naturally be expressly averred, must be Dilatory defense. A. defense designed
averred. 16 to 'dismiss, suspend, or obstruct the prosecu­
The practIce which requires affidavits of defense
is limited to obligatiOns for the payment of a certain
tion of a claim, without touching upon the
--.. sum of money. Hence, it does not apply inactions for defendant's "meritorious defense." See
MERITS.
'Stitt v. Garrett, 3 Whart. 281 (1337); Comly v,
Bryan, 5 ill. 281 (1339); Marsh v. Marshall, 63 Pa. 896 , Borlin v. Commonwealth, 99 Pa. 46 (1331). See 89
(1866). ie!. 28; 00 id. 276.
" Feust v. Fell, 6 W. N. C. 48 (1878); KIrkpatrick 11, I See City v. Devine, 1 W. N. C. 358 (1875); Clymer v.
, Wensell, 2 Leg. Chron. 303 (1874). Fitler, ib. 626 (1875); Blew v. Schock. ib. 612 (1875);
'Lelbersperger v. Reading Bank, 30 Pa. 631 (1858). Crine v. Wallace, ib. 293 (1875); Burkhart v. Parker, 6
f Bryar v. HarrisoIl, 87 Pa. 223 (1880). W. & S. 480 (1843); Hunter v. Reilly, 36 Pa. 500 (1360).
• Thompson v. Clark, 56 Pa. 33 (1867). • Black v. Halstead, 89 Pa. 64 (1861); Thompson v.
• Chartiers R. 00. v. Hodgens, 77 Pa. 187 (1874), Olark, 66 ie!. 33 (1867).
'Walker v. Geisse, 4 Whart. 256 (1338). • Clarion Bank v. Gregg, 79 Pa. 384 (1875); Renzor v.
• Bronson v. Silverman, 77 Pa. 94 (1874). Supplee, 81 icl. ISO (1876).
• Lawrence v. Smedley, 6 W. N. C.42 (Sup. Ct., 1878). • Eyre v. Yohe, 67 Pa. 477 (1871); Moeck v. Littell, 82
,. Markley v. Stevens, 89 Pa. 281 (1879); 77 ie!. 283; 89 ill. 354 (1876).
ill. 261. • Anderson v. Nichols, 12 Pitts, Leg. J. 231 (1882),

II Peck v. Jones, 70 Pa. 83 (1871). 'Laird v. Campbell, 92 Pa. 475 (188O).

,. Lord v. Ocean Bank, 20 Pa. 884 (1858), • Callan v. Lukens, 89 Pa. 184 (1879), Per Curiam.

II Selden v. Neemes, 4.'l Pa. 421 (1862). I White v. Leeds, 51 Pa. 187 (1885). See Act 18 April,

,. Marsh v. Marshall, 53 Pa. 396 (1866). 1874: P. L. 64; 2 W. N . 0.707.


.. Markley v. Stevens, 89 Pa. 281 (1879). II Maynard v. National Bank, 98 Pa. 250 (1881).