DEFENCE. Torts. A forcible resist ance of an attack by force.
2. A man is justified in defending his person, that of his wife, children, and ser vants, and for this purpose he may use as much force as may he necessary, even to kill ing the assailant, remembering that the means used must always be proportioned to the occasion, and that an excess 15ecoines itself an injury, 3 Mees. & W. Exch. 150 ; but it must be in defence, and not in re 1 Carr. & M. 214; 11 Mod. 4-3.
A man may also repel force by force in defence of his personal property, and even justify homicide against one who mani festly intends or endeavors, by violence surprise, to commit a known felony, as rob bery.
3. With respect to the defence or protec tion of the possession of real property, al though it is justifiable even to kill a person in the act of attempting to commit a forcible felony, as burglary or arson, yet this justifi cation can only take place when the party in possession is wholly without fault. 1 Hale, P1. Cr. 44), 441; I East, P1. Cr. 259, 277. And •where an illegal forcible attack is made upon a dwelling-house with the intention merely of committing a trespass, and not with any felonious intent, it is generally lawful for the rightful occupant to oppose it by force. 7 Bingh. 305; 20 Eng. C.M. Law, 139. See, generally, 1 Chitty, Pract. 539; Grotius, lib.
2, c. 1 ; Rutherforth, Inst. b. 1, c. N. And see ASSAULT.
4. In Pleading and Practice. The de nial of the truth or validity of the complaint. A general assertion that the plaintiff has no ground of action, which is afterwards ex tended and maintained in the plea. 3 Shars wood, Blackst. Comm. 296 ; Coke, Litt. 127.
In this sense it is similar to the contestatio Mit of the civilians, and does not include justifioation. In a more general sense it denotes the means by which the defendant prevents the success of the plaintiff's action, or, in criminal practice, the indict ment. The word is commonly used in this sense in modern practice.
5. Half defence was that which was made by the form "defends the force and injury, and says" (defendit viol et irtjuriam, et dicit).
Full defence 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 de fend" (defrndit vim, et injurium quundo et ubi curia consideravit, et damna el quicquid quod ipse defindere debet, et dicii), commonly shortened into "defends the force and injury when," etc. Gilbert, C. P. 188; 8 Term, 632;
3 Bos. & P. 9, n.; Coke, Litt. 127 b; Willes, 41. It follows immediately upon the state ment of appearance, " comes' (vent), thus: " comes and defends." By a general defence the propriety of the writ, the competency of the plaintiff, and the jurisdiction of the court were allowed; by defending the force and in jury, misnomer was waived; by defending the damages, all exceptions to the person of the plaintiff; and by defending either when, etc., the jurisdiction of the court was admitted. 3 Sharewood, Blackst. Comm. 298.
6. The distinction between the forms of half and full defence was first lost sight of, 8 Term, 633 ; Willes, 41; 3 Boa. & P. 9; 2 Saund. 209 c; and no necessity for a tech nical defence exists, under the modern forms cf practice.
Formerly, in criminal trials for capital crimes the prisoner was not allowed counsel to assist in his defence. 1 R3-. & M. Cr. Cas. 166; 3 Campb. 98; 4 Sharswood, Blackst. Comm. 350, n. This privilege was finally ex tended to all persons accused of felonies in England, by 6 and 7 Will. 1V. c. 114. It is secured in the United States courts ly act of congress April 30, 17{9, 1 Story, U. S. Laws, 89, and by statute in the various 7. The act of congress enacts that every person accused cr indicted cf the crime of treason, or other capital offence, shall "be allowed and admitted to make his full de fence by counsel learned in the law; and the court before whom such person shall be tried, or some judge thereof, shall, and they arc hereby authorized and r equired, 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 ac cused or indicted of the crimes aforesaid shall be allowed and admitted in his said defence to make any proof that he or they can pro duce, 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 wit nesses to appear on the prosecution against them."