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Browsing: Legal Papers of John Adams, Volume 1


This foot note contained in document ADMS-05-01-02-0002-0001-0002
78. The “defense” presented special problems in the plea in abatement. The “full defense,” quoted in note 22 note 38 above, was in earlier practice considered improper for a plea in abatement, since it admitted most objections to jurisdiction and capacity. The correct usage was the “half defense”: “comes and defends the force and injury and says.” In the abbreviated form used here the addition of “when” was at first supposed to indicate a full defense, but later cases said that it could stand for either full or half. After three pages of learned discussion, Story concluded, “Indeed, since the common contraction of them is the same, and the Court will intend the abbreviation, either, according to the case in which they occur, ... there seems no objection to use the common form, 'comes and defends the force and injury, when, &c.' in all cases whatsoever.” Story, Pleadings 3–4.