Page:The New International Encyclopædia 1st ed. v. 06.djvu/90

* DEFAULT. 66 DEFENSE. employed of a similar failure at any sta-s; of llu' cause. In general, the elVccl of a default on the part of the plaiulilT is to entitle the opposing party to a nonsuit, and the default of the de- fendant renders liini liable to a judgment in aeoordanee with the demand of the declaration or complaint. Formerly, in suits at law, these results were linal, but the priKedure of the equity tribunals permitted the oi)ening of defaults for cause shown, and this is now the general prac- tice, at law as well as in equity, in the courts of England and the I'nited States. Usually, how- ever, the default can he reopened and the cause reinstated on the calendar of the court only on the payment of moderate costs by the party in default. See Procedire. DE FADX, df fd', Alexandre (1820—). A French landscape painter, bom at Bcrcy. He was a pupil of C'orot. and jiainted in the manner of that artist^but was in no sense a copyist. His best |)ictures arc "Spring in the Woods" ( 1875, second-class medal), a fine study of trees in bloom: "From Honfleur to Pennodejiic" (1.S78) : "The Kanks of the Loing" (1890): and "The Port of Pont-Aven" (IS80). and "Morning at Chateau Loudon," both in the Luxembourg. He received the medal of the Legion of Honor in 1881. DEFEASANCE (OF. dcfcisttmi-, (rom dcfairc, Fr. dii'iirt. to make void). A proviso aimexed to a conveyance of land or goods, whereby the latter shall become void in some specified event. At common law, the term was confined to such a proviso contained in a separate instrument from the act or deed of conveyance, the term condition being proper to describe a similar term or provision contained in or forming a part of the conveyance itself. At the present time, how- ever, the latter is often referred to as a clause of defeasance. It is commonly employed to effect a mortgage, which is, properly speaking, a con- veyance of property with a defeasance reinstating the title of the mortgagor upon the payment of the mortgage dcl>t. In the I'nited States the defeasance is usually incorporated in the mort- gage deed, but in England a mortgage often takes on the form of an absolute deed with a separate deed of defeasance, made by the mortgagee to the mortgagor, specifying the condition on which the conveyance of the property is to become void. Ordinarily, a separate instrument of defeasance must he delivered at the same time as the deed of conveyance which it is intemled to alTect, so as to form part of the same transaction. If given subse(|uently, it may have the effect of a covenant, enforceable in a separate action by the giantor of the property, but it will not, in that event, convert the grant into a mortgage. At common law it is also necessary that a separate defeasance, in order to have the in- tended openition, .should he 'of as high a nature' as the conveyance itself, that is, should also be in the form of a deed. But the courts of equity have always admitted parol evidence of the agreement, understanding, and purpose with which a conveyance was made, and have given effect to such a proviso, even though it was not embodied in a deed or other written form. Ac- cordingly, an absolute deed conveying a parcel of land for the real pur|iose of securing the pay- ment of a debt is, in practical effect, a mortgage, and mav be redeemed as such. In New York and a few other States a parol defeasance may also be jiroven in the courts of conmion law, though this has not liccome the practice generally in the I. nited States or in England. See (^'o.nuitio.n ; iloiiTi,.vi,K: and the authorities there referred to. DEFENDANT. The person who is sued in action at law or in equity. Blackstone says, '"In every court there must be at least three constit- uent parts — the actor, or plaintiff, who complains of an injury done: the rcii.'i. or defcmlant, who is called vipon to make satisfaction for it: and the judex, or judicial power, which is to examine the truth of the fact, to determine the law arising upon that fact, and, if any injury appears to have been done, to ascertain, and, by its officer, to apply the remedy" (."5 Bl. Com. 25). The term was originally limited to the per- son sued in a /icrsomil action at common law, the one against whom a real action was brought be- ing described as "the tenant,' the comjdaining party in that case being known as 'the demand- ant.' and these expressions are still employed to distinguish the c<mtending claimants to real pro])erty in several of the Vniteil States. But in most States, as well as in England, the term defendant has come to designate the party u.sed in any form of action and in any court. See Parties. DEFENDER OF THE FAITH (Trans. of the Latin. J'idii Ikfiiisor) . A title con- ferred on Henry VIII. by I'ope Leo X. in recog- nition of his treatise, .lssc)(io .Sc/j/tm Sucra- mcntoruin, directed against Martin Luther, in 1521. When Henry suppressed the religious houses at the Reformation, Pope Clement VII. recalled the title and deposed him. In l.">44 Par- liament confirmed the title, which has ever since been used by the sovereigns of Great Britain. The corresponding title in Spain is Calhaliriis (Most Catholic), and in France was Christiiinis- simus (Most Christian King). DEFENDER OF THE MARRIAGE TIE (l)'friisor MnlrimiDiii) . . olVnc created by Pope Benedict XIV. in the year 1741. Its object is, in all cases of actions for divorce, or any at- tempt to annul the marriage tie. to defend the marriage bond in its integrity. Marriage, being a sacrament in the Catholic t^hurch, is. like the other sacraments, most jealously guarded. The 'defender' is clothed by e<'clesiastical authority with the same or similar powers that the prose- cuting attorney in civil law, in criminal pro- cedure, is endowed with. He usually acts as a referee in civil-court proceedings. The office was instituted in America by the Third Plenary Council of Baltimore in 1S84, and is now ex- tended until each Catholic diocese has its 'de- fender' ecclesiastically appointed, ready to de- fend the integrity of the marriage agreement be- fore any court of proper jurisdiction. DEFENSE (Lat. defcndcrc. to ward off). In criminal law. the right of forcible resistance to an attack by force on person or property. The exercise of this right may be a justification of the charge of assault or homicide. It is rcstricteil to the employment tif so much force as is reasona- bly necessary for the protection of one's self, his wife, children, and other members of his house- hold, his personal property, and, where a felony is threatened, as burglary or arson, his real prop- erty. He may aKso resist by force a violent at-