Colour

EXPRESS, pleading, is defined to be a feigned matter, pleaded by the defendant, in an action of trespass, from which the plaintiff seems to have a good cause of action, whereas he has in truth only an appearance or colour of cause. Bac. Ab. Trespass, I 4. 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 state his title specially, by expressly giving colour of title to the plaintiff, or supposing him the j jury are not competent judges. 3 Bl. Com. 309. Suppose, for example, that the plaintiff was in wrongful possession of the close, without any farther 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 colour, 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 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 his heir, the disseiseé 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 not preserve the right of entry in the disseisee, notwithstanding a descent cast on the heir of! the disseisor. (See as to this point, Claim, Continual.) The issue however is merely not guilty, and this is triable by jury; and the effect, theresubject 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 toa jury. If they have any means of setting forth their title specially in their plea, the object will be attained; for then the plaintiff, if disposed to question the sufficiency 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, accord- ‘ing to the state of fact, would be informal for want of colour; and henee arises a difficulty. 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 colour, they gave in lieu of it an ezpress one, by inserting a fictitious allegation of some colourable title in the plaintiff, which they, at the same time avoided by the preferable title of the defendant. See Steph. Pl. 225; Brown’s Entr. 343, for a form of the plea. 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 colour universally given is that of a defective charter of demise. See, in general, 2 Saund. 401; — 10 Co. 88; Cro. Eliz. 76; 1 East, 215; Doct. PI..17; Doct. & Stud. lib. 2,c. 53; Bac. Abr. Pleas, 18; Trespass, 14.1 Chit. Pl. 500; Steph. on Pl. 220.