against whom the judgment sought to be reversed is rendered, not to the defendant in the original action.1 Ordinarily, a municipal corporation is not affected by a law which speaks in general terms of defendants, unless expressly brought within the provisions.2 Compare LITIGANT; PARTY; PLAINTIFF; RESPONDENT; SUITOR. See DELICTUM, In pari, etc. DEFENSE, or DEFENCE.3 1. Resistance of an attack; resistance with force of an attack made with force or violence. Self-defense. Protection of person or property from injury. The defense of one's self, or the mutual and reciprocal defense of such as stand in the relation of husband and wife, parent and child, master and servant, is a species of redress of private injury which arises from the act of the injured party. In these cases, if the party himself, or a person in one of these relations, be forcibly attacked in his person or property, it is lawful for him to repel force with force. The law in this case respects the passions of the human mind and makes it lawful in a man to do himself that immediate justice to which he is prompted by nature, and which no prudential motives are strong enough to restrain. It considers that the future process of the law is by no means an adequate remedy for injuries accompanied with force; since it is impossible to say to what wanton lengths of rapine or cruelty outrages of this sort might be carried unless it were permitted a man immediately to oppose one violence with another. "Self-defense," therefore, as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society. Care must be taken that the resistance does not exceed the bounds of mere defense and prevention: for then the defender would himself become an aggressor.4 Homicide in self-defense, upon a sudden affray, is also excusable. This species of self-defense must be distinguished from such as is calculated to hinder the perpetration of a capital crime. This is that whereby a man may protect himself from an assault or the like, in the course of a sudden broil or quarrel, by killing him who assaults him. The right of natural defense does not imply a right of attacking: for, instead of attacking one another for injuries past or impending, men need only have recourse to the proper tribunals of justice. They cannot therefore legally exercise this right of preventive defense butin sudden and violent cases, when certain and immediate suffering would be the consequence of waiting for the assistance of the law. Wherefore, to excuse homicide by the plea of self-defense it must appear that the slayer had no other possible (or at least probable) means of escaping from his assailant.. The law requires that the person who kills another in his own defense should have retreated as far as he safely can to avoid 1 Leavitt v. Lyons, 118 Mass. 470 (1875). Schuyler County v. Mercer County, 9 III. 24 (1847). 3 F. défense: L. defensa: defendere, to strike down or away, ward off, repel. Mid. Eng. defence. 43 Bl. Com. 3; 4 id. 186; 1 id. 180. 4 Bl. Com. 183-84. the violence of the assault before he turns upon his assailant; he must flee as far as he conveniently can, by reason of some wall, ditch, or other impediment, or as far as the fierceness of the assault will permit, for it may be so fierce as not to allow him to yield a step without manifest danger of his life or enormous bodily harm, and then in his defense he may kill his assailant instantly.1 But no one may revenge himself by striking an unnecessary blow, as, when all danger is passed, nor strike when the assault is technical and trivial.¹ The principles of the law of self-defense may be stated in three propositions: (1) A person who, in the lawful pursuit of his business, is attacked by another under circumstances which denote an intention to take his life, or to do him some enormous bodily harm, may lawfully kill the assailant, provided he uses all the means in his power, otherwise, to save his own life, or prevent the intended harm, such as retreating as far as he can, or disabling his adversary without killing him, if it be in his power. (2) When the attack upon him is so sudden, fierce, and violent that retreat would not diminish but increase his danger, he may instantly kill his adversary without retreating at all. (3) When, from the nature of the attack, there is reasonable ground to believe that there is a design to destroy his life or commit any felony upon his person, killing the assailant will be excusable homicide, although it should afterward appear that no felony was intended.2 The law of self-defense is a law of necessity, real or apparently real. A party may act upon appearances, though they turn out to have been false. Whether they were real or apparently real is for the jury, in a criminal case, to decide upon consideration of all the circumstances out of which the necessity springs. If the jury should find from the evidence that the circumstances were such as to e cause to apprehend immediate danger of such design being accomplished.¹ Adjudicated cases hold that among the slayer's acts which abrogate or abridge his right of self-defense are the following: 1. Devices to provoke the deceased to make an assault which will furnish a pretext for taking his life or inflicting serious bodily injury upon him. 2. Provocation of the deceased into a quarrel, causing the fatal affray; but mere words or libelous publications do not amount to such provocation. 3. Preconcert with the deceased to fight him with deadly weapons. 4. Commencing an attack, assault, or a battery upon the deceased. 5. Going with a deadly weapon where the deceased is, for the purpose of provoking a difficulty or bringing on an affray, and by words or acts making some demonstration of such purpose calculated to provoke them.2 See ARMS; ASSAULT; BATTERY; FORCE; HOMICIDE; IMMEDIATE; RETREAT; THREAT. 2. That which is offered by a defendant as sufficient to defeat a suit - by denying, justifying, or confessing and avoiding, the cause of action. The practice which requires affidavits of claims and defense has been systemized in Pennsylvania to a degree of completeness scarcely known elsewhere. The subject is usually discussed in connection with the inquiry, What are the essentials of a "sufficient" affidavit of defense. In that State the practice originated in an agreement between members of the bar at Philadelphia, signed September 11, 1795.1 After that, statutes extended the practice, until it became general.2 Yet the courts, by mere rule, could have required defendants to file a statement of defense. The practice does not conflict with the right of trial by jury. If a defendant presents no defense to be tried by a jury he cannot claim that privilege is denied 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 has 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 defense, under oath, is merely a means to prevent delay, by falsehood and fraud. Nor can it be objected, when all the facts have been stated by the defendant which he either knows or is informed of, believes and exA term of art used in common-law pleadpects to be able to prove, that the court decides the ing in the sense merely of "denial." 3 When the plaintiff hath stated his case in the declaration, it is incumbent on the defendant within a reasonable time to make his "defense," and to put in a plea; else the plaintiff will recover judgment by default, q. v. Defense, in its true legal sense, signifies not a justification, protection, or guard, which is its popular signification, but an opposing or denial (French, defender) of the truth or validity of the complaint. 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 TRAVERSE. The right possessed by a defendant, arising out of the facts alleged in his pleadings, which either partially or wholly defeats the plaintiff's claim.5 Defenses, in civil procedure, are stated with fullness and particularity in answers to bills and libels, and in affidavits of defense filed to affidavits of claim. Defense, affidavit of. A sworn written statement of the facts which constitute the defense in a civil action; also called "affidavit of merits." Opposed, affidavit of claim. 1 State v. Johnson, 76 Mo. 122, 126 (1882), Norton, J.; State v. Umfried, ib. 408 (1882); 69 id. 469. 2 Cartwright v. State, 14 Tex. Ap. 486, 499 (1883), cases, Hart, J.; Reed v. State, 11 id. 517 (1882); 70 Ala. 7; 71 id. 336-37; 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 St. 186; 38 Pa. 267-68; 101 id. 323; 45 Vt. 308; 2 Bish. Cr. L. 877; 12 Rep. 268. • United States v. Ordway, 30 F. R. 32 (1887). 8 Bl. Com. 296. See 33 Ind. 449; 8 How. Pr. 442; 10 d. 148; 24 Barb. 631. [Utah, &c. R. Co. v. Crawford, 1 Idaho, 773 (1880). law arising upon the facts as stated. This is no more than the court does upon a demurrer, a special verdict, a nonsuit or an issue in equity. The affidavit is only a modern mode of making up the issue for the jury. And when, upon a statement of all the facts a defendant can conscientiously 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 has 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 affidavit he has made the evidence to support his own case.4 The object is to prevent delay of justice through false defenses. At the same time, the practice being in derogation of the right of trial by jury, regulations are to receive The question of insufficiency is brought directly before the court by a rule on the defendant "to show cause why judgment should not be entered 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 contradicted even by a record.2 It is sufficient to set forth, in the affidavit - facts showing a valid defense which can properly be established; - specifically, and at length, such facts as will warrant the inference of a complete legal defense; 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 against the plaintiff's demand, if established by proof.7 The facts are to be averred with reasonable precision; 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 evasive 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 of 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. 10 But no essential fact is to be left to inference; 11 what is not said is taken as not existing. 12 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 meaning of the terms employed. 14 A material fact which, if it actually exists, would readily and naturally be expressly averred, must be averred. 15 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 in actions for 1 Stitt v. Garrett, 3 Whart. 281 (1837); Comly v. Bryan, 5 id. 261 (1839); Marsh v. Marshall, 53 Pa. 396 (1866). 2 Feust v. Fell, 6 W. N. C. 43 (1878); Kirkpatrick v. Wensell, 2 Leg. Chron. 303 (1874). Leibersperger v. Reading Bank, 30 Pa. 531 (1858). 4 Bryar v. Harrison, 37 Pa. 233 (1860). • Thompson v. Clark, 56 Pa. 33 (1867). • Chartiers R. Co. v. Hodgens, 77 Pa. 187 (1874). Walker v. Geisse, 4 Whart. 256 (1838). 8 Bronson v. Silverman, 77 Pa. 94 (1874). Lawrence v. Smedley, 6 W. N. C. 42 (Sup. Ct., 1878). 10 Markley v. Stevens, 89 Pa. 281 (1879); 77 id. 283; 89 id. 281. 11 Peck v. Jones, 70 Pa. 83 (1871). 12 Lord v. Ocean Bank, 20 Pa. 384 (1853). 13 Selden v. Neemes, 43 Pa. 421 (1862). 14 Marsh v. Marshall, 53 Pa. 396 (1866). 15 Markley v. Stevens, 89 Pa. 281 (1879). torts, nor in actions upon contracts for the payment of an uncertain sum, or where there is no standard by which to liquidate the judgment.1 The defendant is to make the affidavit, unless cause, such as sickness or necessary absence, is shown why he cannot make it. Then an agent, and perhaps even a stranger to the transaction, may make it. When defendant avers facts on information and belief he must add that he expects to be able to prove them or else set out specifically the source of his information 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 supplementary 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 supplemental affidavit of defense in reply to a supplemental affidavit of claim. But the court will not consider the sufficiency of either affidavit. Should the court deem the defense set out in the original affidavit to be probably good but obscurely or otherwise defectively stated, it may allow a supplemental affidavit of defense to be filed. Notice thereof is to be given, to prevent surprise and delay at the time for trial. There is no rule that such supplemental affidavit must be confined to an explanation of the original defense, 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 addressed 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 of defense, to become part of the record, should be offered in evidence.10 Dilatory defense. A defense designed to dismiss, suspend, or obstruct the prosecution of a claim, without touching upon the defendant's "meritori