D E V 
Mm, becaufe it may fo happen that he may fave his de¬ 
fault. i Nelf. Abr. 627". By default of a defendant, he 
is faid to be generally out of court to all purpofes, but 
only that judgment may be given againft him: and no 
judgment can be afterwards given for the defendant. 
When two are to recover a perional thing, the default 
of one is the default of the ether : contra, where they are 
to difeharge themfelves of a perfonalty; where the de¬ 
fault of the one is not the default of the other. 1 Lill. 
Abr. 425. In an adlion againlt two, if the procefs be de¬ 
termined againft one, and the other appears, he fliull be 
put to anfwer, notwithftanding the default of his com¬ 
panion. 2 Danv.Abr. 480. Where the baron is to have a 
corporal punilhment for a default, there the default of 
the wife fhall not be the default of the hulband ; but 
otherwife it is where the hulband is not to have any cor¬ 
poral punilhment by the default. 
If a defendant imparl to another day in the fame term, 
and make default at the day, this is a departure in defpite 
of the court; and when the defendant after appearance, 
and being prefent in court, upon demand makes depar¬ 
ture, it is in defpite of the court. Co. Lit. 139. Suffering 
judgment to go by default, is an admillion of the contract 
declared on. After the inqueft is taken by default, the 
defendant can make no fuggeftion on the roll. Str. 46,612. 
Default in criminal Cases. An offender indidted 
appears at the capias, and pleads to ifl'ue, and is let to bail 
to attend his trial, and then makes default, here the in¬ 
queft, in cafe of felony, fhall never be taken by default, 
but a capias ad audiendam juratam fhall iffue, and if the 
party is not taken, an exigent ; and if he appear on that 
writ, and then make default, an exigifacias de novo may 
be granted; but where, upon the capias or exigent, the 
fheriff returns ccpicorpus, and at the day hath not his body, 
the fheriff filial 1 be punifhed, but no new exigent awarded, 
becaufe in cuftody of record. 2 Hale's P. C. 202. 
Default of Jurors. If jurors make default in their 
appearance for trying of caufes, they fhall lofe and forfeit 
iffiies, unlefs they have any reafonable excufe proved by 
witneffes, in which cafe thejuftices may difeharge the 
iffue for default. 35 Hen. VIII. c. 6. 
DEFAULT'ER, f. One that makes default. 
DEFEASANCE, f. [ defaifance , Fr.] The aft of an¬ 
nulling or abrogating any contract or ftipulation. A de¬ 
feat ; conqueft ; the a£t of conquering; the ftate of be¬ 
ing conquered. Objolete: 
That hoary king, with all his train, 
Being arrived where that champion (tout. 
After his foes defeafance, did remain, 
Him goodly greets, and fair does entertain. Spevfer 4 
DEFEA'SANCE,yi inlaw, is of two forts : 1. A Col¬ 
lateral deed made at the fame time with a feoffment or 
other conveyance, containing certain conditions, upon 
the performance of which the eftate then created may be 
defeated or totally undone. In this manner mortgages 
were in former times ufually made; the mortgagor en¬ 
feoffing the mortgagee, and he at the fame time exe¬ 
cuting a deed of defeafance, whereby the feoffment was 
rendered void, on re-payment of the money borrowed at 
a certain day. And this, when executed at the fame 
time with the original feoffment, was conftdered as part 
of it by the ancient law, and therefore only indulged, 
no fubfequent fecret revocation of a folemn conveyance, 
executed by livery of feifin, being allowed in thofe days 
of fimplicity ani truth ; though when ufes- were after¬ 
wards introduced, a revocation of fuch ufes was permit¬ 
ted by courts of equity. But things that were merely 
executory, or to be completed by matter fubfequent, (as 
rents of which no feifin could be had till time of pay¬ 
ment, annuities, conditions, warranties, and the like,) 
were always liable to be recalled by defeafances made 
fubfequent to the time of their creation. 2. A defea¬ 
fance on a bond, recognifan.ee, or judgment recovered, 
is. a condition which, whqn performed, defeats that in the 
Yol.V. No. 304. 
DEE cm 
fame manner as the foregoing defeafance of an eftate. It 
differs only from the common condition of a bond, in 
that the one is always inferted in the deed or bond ir- 
felf, the other is made between the fame parties by a fe- 
parate, and frequently by a fubfequent, deed. This, 
like the condition of a'bond when performed, difcharges 
and difencumbers the eftate of the obligor. 1 Lift. 236, 7, 
2 Sand. 47. The defeafance may generally (as in the cafe 
of a bond, &c.) be indorfed on the back of the deed. 
To make-a good defeafance it muft be, 1. By deed; (in 
the cafe of indorfement by a deed-poll;) for there cannot 
be a defeafance of a deed without deed.; and a writing 
under hand doth not imply it to be a deed. 2. It muff 
recite the deed it relates to, or at leaft the moft material 
part thereof; or, in cafe of indorfement, refer thereto. 
3. It is to be made between the. fame perforis that were 
parties to the firft deed. 4. It muff be made at the time, 
or after the firft deed, and not before. 5. It ought to be 
made of a thing defeafible. 1 Inf. 236. 
Inheritances executed by livery, fuch as eftates in fee, 
or for life, cannot be fubjeo: to defeafance afterwards, but 
at the time of making the feoffment, 8 cc. only ; but exe¬ 
cutory inheritances, fuch as leafes for years, rents, annui¬ 
ties, conditions, covenants, &c. may be defeated by de¬ 
feafance made after the things granted. And it is the 
fame of obligations, recognilances, ftatutes, judgments. 
See. which are moft commonly the fubjeft of defeafance, 
and ufually made after the deed whereto they have rela¬ 
tion. Plovid. 137. If a man acknowledge a ftatute to an¬ 
other, and enters into a defeafance, that if his lands in 
fuch a county ffiould be extended, the ftatute fhould be 
void ; the defeafance will be good, and not repugnant, 
becaufe it is by another deed : but the condition of a 
bond not to fue the obligation is void for repugnancy, 
being in the fame deed. Moor 1035. Although the con¬ 
dition of an obligation, where it is repugnant to it, be 
void; it is otherwife in cafe of a defeafance made after 
the bond, for this fhall be good notwithftanding; as, 
where the obligee afterwards grants by deed to the 
obligor, that he will not fue thereon at all, or not till 
fuch a time, or that it fhall be difeharged, &c. 20 Hen, 
VII. c. 24. Fitz. Bar. 71. 
Where a provifo goes by way of defeafance of a cove¬ 
nant, it muft be pleaded on the other fide, otherwife 
where, by way of explanation or reftriction of the cove¬ 
nant. 2 Salk. 574. If A. be bound in bond to B. in 
twenty pounds, and he makes a defeafance to C. that if 
lie pay him the like fun), the obligation made by A. fhall 
be void ; this is no good defeafance, becaufe it is not 
made between the fame parties; though if a ftatute be 
entered into to hulband and wife, and the hulband alone 
make a defeafance, it may be good. 14 Hen. VIII. c. 101. 
A ftatute, &c. may be defeafanced on condition of per¬ 
forming a will, and paying legacies to other perfons. 1 
Cro. S37. If a defeafance of a ftatute be made, and after 
another defeafance is made by the fame parties, the firft 
defeafance becomes void thereby ; and the fecond only is 
in force, as in cafe of a will. 2 Danv. Abr. 481. Where a 
ftatute is acknowledged to two perfons, and one of them 
makes a defeafance, it is faid to be a good difeharge. If 
execution be fued out before the time in a defeafance 
part, it fhall be fet afide. 1 Lil. 426. 
In a defeafance of a deed of lands, the perfon to whom 
made, covenants that on payment of a certain fum, on 
fuch a day, he will transfer and re-convey the eftate back 
again; and that the maker fhall enjoy, till default, &c. 
If the defeafance be of a judgment, he covenants that on 
payment of the money, he will enter fatisfadlon on the 
record ; if of a ftatute or bond, that on payment it fhall 
be void, &c. See Conveyance, in this volume. 
DEFE A'SIBLE, adj. [from defaire, Fr. to make void.] 
That which may be annulled or abrogated.—He came to 
the crown by a defeafible title, 1b was never well fettled. 
Davies. 
DEFE'AT, f, [from defaire, Fr.] The overthrow of 
I F an 
