DEFENCE. Torts. A forcible resistance of an attack by force.
A man is justified in defending his person, that of his wife, children, and servants, and for this purpose he may use as much force as may be necessary, even to killing the as sailant, remembering that the means used must always be proportioned to the occasion, and that an excess becomes itself an injury ; 3 M. & W. 150; Jamison v. Moseley, 69 Miss. 478, 10 South. 582; People v. Bruggy, 93 Cal. 476, 29 Pac. 26; Lovett v. State, 30 Fla. 142, 11 South. 550, 17 L. R. A. 705 ; Kelly v. State, 27 Tex. App. 562, 11 S. W. 627 ; Duncan v. State, 49 Ark. 543, 6 S. W. 164; Estep v. Cora., 86 Ky. 39, 4 S. W. 820, 9 Am. St. Rep. 260; but it must be in defence, and not in revenge ; 1 C. & M. 214 ; Poll. Torts 255 ; State v. McGraw, 35 S. C. 283, 14 S. E. 630; for one is not justified in shooting another, if such other party is retreating or has thrown away his weapon; Meurer v. State, 129 Ind. 587, 29 N. E. 392 ; nor is a mere threat to take one's life, with nothing more, a sufficient defence or excuse for committing homicide ; State v. Howard, 35 S. C. 197, 14 S. E. 481.
A man may also repel force by force in defence of his personal property, against one who manifestly intends or endeavors, by violence or surprise, to commit a known fel ony, as robbery, by any force short of tak ing the aggressor's life; 1 Bish. New Cr. L. § 875 ; or short of wounding or the employ ment of a dangerous weapon ; Com. v. Dona hue, 148 Mass. 529, 20 N. E. 171, 2 L. R. A. 623, 12 Am. St. Rep. 591. In the latter. case Holmes, J., said : "We need not consider whether this explanation is quite adequate. There are weighty decisions which go fur ther than those above cited, and which can hardly stand on the right of self-defence, but involve other considerations of policy." See Powers v. People, 42 Ill. App. 427.
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 fel ony, as burglary or arson, yet this justifica tion can only take place when the party in possession is wholly without faillt ; 1 Hale, Pl. Cr. 440, 444 ; 1 East, Pl. 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 law ful for the rightful occupant to oppose it by force; 7 Bing. 305; 20 Eng. C. L. 139. See,
generally, 1 Chit. Pr. 589; Grotius, lib. 2, c. 1; Rutherford, Inst. b. 1, c. 16; 2 Whart. Cr. L. § 1019; Bishop ; Clark; Wharton, Criminal Law ; Thompson, Cases of Self Defence ; ASSAULT; SELF-DEFENCE; JUSTIFI CATION.
In Pleading and Practice. The denial 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 Bla. Com. 296; Co. Litt. 127; Wilson v. Poole, 33 Ind. 448.
In this sense it is similar to the contestatio litis of •the civilians, and does not Include justification. 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 in dictment. The word is commonly used in this sense in modern practice.
Half defence was that which was made by the form "defends the force and injury, and says" (defendit vim et injuriam, et dioit).
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" (defendit vim et injuriam quar,do et ubi curia considerabit, et daranit et quicquid quod ipso defendere debet, et (UM), com monly shortened into "defends the force and injury when," etc. 3 B. & P. 9, n.; Co. Litt. 127 b ; Willes 41. It follows immediately up on the statement of appearance, "comes" (vent), thus : "comes and defends." By a general defence the propriety of the writ, the competency • of the plaintiff, and the jurisdic tion of the court were allowed; by defending the force and injury, 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 Bla. Com. 298.
The distinction between the forms of half and full defence was first lost• sight of ; 8 Terra 633 ; Willes 41 ; 3 B. & P. 9; 2 Saund. 209 c; and no necessity for a technical de fence exists, under the modern forms of prac tice.