3.
It is a general rule in pleading that no man shall be allowed to plead
specially such plea as amounts to the general issue, or a total denial
of the charges contained in the declaration, and must in such cases
plead the general issue in terms, by which the whole question is
referred to the jury; yet, if the defendant in an action of trespass, be
desirous to refer the validity of his title to the court, rather than
to the jury; he may in his plea stated his title specially, by expressly
giving color of title to the plaintiff, or supposing him to have an
appearance of title, had indeed in point of law, but of which the jury
are not competent judges. 3 Bl. Com. 309. Suppose, for example, that the
plaintiff wag in wrongful possession of the close, without any further
appearance of title than the possession itself, at the time of the
trespass alleged, and that the defendants, entered upon him in assertion
of their title: but being unable to set forth this title in the
pleading, in consequence of the objection that would arise for want of
color, are driven to plead the general issue of not guilty. By this plea
an issue is produced whether the defendants are-guilty or not of the
trespass; but upon the trial of the issue, it will be found that the
question turns entirely upon a construction of law. The defendants say
they are not guilty of the trespasses, because they are not guilty of
breaking the close of the plaintiff, as alleged in the declaration; and
that they are not guilty of breaking the close of the plaintiff, because
they themselves had the property in that close; and their title is.
this, that the father of one of the defendants being seised of the close
in fee, gave it in tail to his eldest son, remainder in tail to one of
the defendants; the eldest son was disseised, but made continual claim
till the death of the disseisor; after whose death, the descent being
cast upon the heir, the disseisee entered upon the heir, and afterwards
died, when the remainder took effect in the said defendant who demised
to the other defendant . Now, this title involves a legal question;
namely, whether continual claim will no preserve the right of entry in
the disseisee, notwithstanding a descent cast on the heir of the
disseisor. (See as to this point, Continual Claim.) The issue however is
merely not guilty, and this is triable by jury; and the effect,
therefore, would be, that a jury would have to decide this question of
law, subject to the direction upon it, which they would receive from the
court. But, let it be supposed that the defendants, in a view to the
more satisfactory decision of the question, wish to bring it under the
consideration of the court in bank, rather than have it referred to a
jury. If they have any means of setting forth their title specially in
the plea, the object will be attained; for then the plaintiff, if
disposed to question the sufficiently of the title, may demur to the
plea, and thus refer the question to the decision of the judges. But
such plea if pleaded simply, according to the state of the fact, would
be informal for want of color; and hence arises a difficulty.
4.
The pleaders of former days, contrived to overcome this difficulty in
the following singular manner. In such case as that supposed, the plea
wanting implied color, they gave in lieu of it an express one, by
inserting a fictitious allegation of some colorable title in the
plaintiff, which they, at the same time avoided by the preferable title
of the defendant. S Step . Pl. 225 Brown's Entr. 343, for a form of the
plea. Plowd. Rep. 22 b.
5.
Formerly various suggestions of apparent right, might be adopted
according to the fancy of the pleader; and though the same latitude is,
perhaps, still available, yet, in practice, it is unusual to resort to
any except certain known fictions, which long usage has applied to the
particular case for example, in trespass to land, the color universally
given is that of a defective charter of the demise. See, in general, 2
Saund. 410; 10 Co. 88; Cro. Eliz. 76; 1 East, 215; Doct. Pl. 17; Doct.
& Stud. lib. 2, c. 53; Bac. Abr. Pleas, I 8; Trespass, I 4; 1 Chit.
Pl. 500 Steph. on Pl. 220.
6.
Implied color. That in pleading which admits by implication, an
apparent right in the opposite party, and avoids it by pleading some new
matter by which that apparent right is defeated. Steph. Pl. 225.
7.
It is a rule that every pleading by way of confession and avoidance,
must give color; that is, it must admit an apparent right in the
opposite party, and rely, therefore, on some new matter by which that
apparent right is defeated. For example, where the defendant pleads a
release to an action for breach of covenant, the tendency of the plea is
to admit an apparent right in the plaintiff, namely, that the defendant
did, as alleged in the declaration, execute the deed and break the
covenant therein contained, and would therefore, prima facie, be liable
on that ground; but shows new matter not before disclosed, by which that
apparent right is done away, namely, that the plaintiff executed to him
a release. Again, if the plaintiff reply that Such release was obtained
by duress, in his, replication, he impliedly admits that the defendant
has, prima facie, a good defence, namely, that such release was executed
as alleged in the plea; and that the defefadant therefore would be
discharged; but relies on new matter by which the plea is avoided,
namely, that the release was obtained by duress. The plea, in this case,
therefore, gives color to the declaration, and the replication, to the
plea. But let it be supposed that the plaintiff has replied, that the
release was executed by him, but to another person, and not to the
defendant; this would be an informal replication wanting color; because,
if the release were not to the defendant there would not exist even an
apparent defence, requiring the allegation of new matter to avoid it,
and the plea might be sufficiently answered by a traverse, denying that
the deed stated in the plea is the deed of the plaintiff. See Steph. Pl.
220; 1 Chit. Pl. 498; Lawes, Civ. Pl. 126; Arch. Pl. 211; Doct. Pl. 17;
4 Vin. Abr. 552; Bac. Abr. Pleas, &e. I 8; Com. Dig. Pleader, 3 M
40, 3-M 41. See an example of giving color in pleading in the Roman law,
Inst. lib. 4, tit 14, De replicantionibus.
COLOR OR OFFICE,
criminal law. A wrong committed by an officer under the pretended
authority of his office; in some cases the act amounts to a misdemeanor,
and the party may then be indicted. In other cases, the remedy to
redress the wrong is by an action.
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