No. 2935.

Book 4, tit. 8, chap. 6, cl. 2, sec. 1, § 3.

No. 2935.

namely, that the plaintiff discharged him, by executing to him a release. But suppose again, that the plaintiff should reply that the release was obtained by duress; here he would admit that the defendant had, prima facie, a good defence, namely, that the release was executed as alleged in the plea, and that, therefore, the defendant would be apparently discharged; but he relies on new matter, by which the effect of the plea is avoided, namely, that the release was obtained by duress. The plea, in this case, would give color to the declaration, and the replication to the plea.

But let it be supposed that the plaintiff had replied, that the release was executed by him, but to another person and not to the defendant; it is evident he would not admit the apparent validity of the release, and the replication would be informal as wanting color, because if the release were not to the defendant, there would not exist an apparent defence, requiring the allegation of new matter to avoid it, and the plaintiff might have traversed the plea by denying that the deed stated in the plea was his deed.

The color incident to all regular pleadings, in confession and avoidance, is called implied color, to distinguish it from another kind, which, though now unusual, is still sometimes inserted in the pleadings, and which is known by the name of express color. The term is usually applied to this latter kind. Color in this sense is defined to be a feigned matter, pleaded by the defendant in an action of trespass, from which a plaintiff seems to have a good cause of action, whereas he has in truth only an appearance or color of cause.(a)

Express color was used for the purpose of enabling a party to spread out his title upon the record; when the plea wanted implied color, then the pleader gave an express one by inserting a fictitious allegation of some colorable title in the plaintiff, which he at the

(a) Bac. Ab. Trespass, I, 4.

No. 2936.

Book 4, tit. 8, chap. 6, cl. 2, sec. 2.

No. 2937.

same time avoided by showing a better title in the defendant. (a)

2936. The qualities, which express color ought to have, are said to be

1. It ought to be matter of title doubtful to a jury, as where the defendant pleads that the plaintiff claiming by a deed of feoffment, that is sufficient, for it is a doubt for men unlearned in the law, if land ought to pass by deed or by livery.

2. Color, as such, ought to have continuance, although it wants effect, as if a defendant give color, by color of a deed of demise to the plaintiff for the life of another, who, it appears, by the pleadings, was dead before the trespass; this is not sufficient, because the color does not continue; but the defendant may well deny the effect of it, namely, that the plaintiff claims by color of a deed of demise to him for life, whereas nothing passed by it; therefore there is a difference between the continuance of color and the effect of it.

3. The color ought to be such that if it were of effect, it would maintain the nature of the action, as in an action of assize, color of a freehold ought to be given.

4. Color ought to be given by the first conveyance, otherwise the conveyance before will be waived; and therefore where the defendant derived title to himself, by divers mesne conveyances, and gave color to the plaintiff by one who was last named in the conveyance, this was held insufficient; he should have given color by him who was first named in the conveyance. (b) In giving color under a feoffment, the word charter or deed must be used. (c)

SECTION 2. OF THE QUALITIES OF PLEAS IN BAR.

2937. This section will be divided into eight heads:

(a) Steph. Pl. 225; Brown's Entr. 343, for a form of the plea. (b) Allen's case, 2 Roll. Rep. 140. See, as to color, Leyfield's case. 10 Co. 91; Doct. Pl. tit. Color, 72; Bac. Ab. Pleas I, 8; Com. Dig. Pleader, 3 M 40; Steph. Pl. 220; Lawes on Pl. 126.

(c) 2 Roll. R. 140.

No. 2938.

Book 4, tit. 8, chap. 6, cl. 2, sec. 2, § 1, 2.

No. 2939.

1, of the adaptation of the plea to the nature of the action, and of its conformity to the count; 2, of what the plea must answer; 3, of what a plea in justification must confess; 4, of the singleness of the plea; 5, of the certainty of the plea; 6, of direct, positive and argumentative pleas; 7, of the capacity of the matter pleaded to be tried; 8, of the truth of the plea.

§ 1.—The plea must be adapted to the nature of the action, and conformable to the count.

2938. A plea in bar, it has already been stated, is an answer to the merits of the complaint, and always goes in denial of the alleged right of action. It must, therefore, be adapted to the nature of the action and comformable to the count. A plea which does not so conform, may be treated as a nullity; as where, to an action of assumpsit, the plea is nil debet; or non assumpsit, in debt.

The plea must not only be adapted to the nature of the action, but it should be conformable to the count; where, therefore, an assignee of a bankrupt declared that the defendant was indebted to the bankrupt, and promised the plaintiff as assignee to pay him, and the defendant pleaded that the cause of action did not accrue to the bankrupt within six years, this plea was held bad on demurrer, because the plea did not answer the promise in the declaration, and precluded the plaintiff from proving a promise to himself. (a)

§ 2. What the plea must answer.

2939. Every plea must answer all it assumes in the introductory part to answer, and no more. When the plea begins only as an answer to part, the plaintiff cannot demur generally, his course is to take judgment by nil dicit for the part not answered. (b) But if the

(a) 2 Saund. 63, d.

(b) Lawes on Pl. 135, 136; Com. Dig. Pleader, E 1.

No. 2940.

Book 4, tit. 8, chap. 6, cl. 2, sec. 2, § 3, 4.

No. 2941.

plea profess at its commencement to answer more than it afterward answers, the whole plea is bad, and the plaintiff may demur; as where in trespass the defendant assumes in the introductory part of his plea to justify the assault, battery and wounding, and afterward merely shows that by virtue of a writ he arrested the plaintiff, but shows no excuse for the wounding.(a) But if the part professed to be answered, which is not, is mere matter of aggravation, the plea need not justify that, and the answer of the matter, which is the gist of the action, will suffice.

§ 3.-—A plea of justification must confess the facts pleaded. 2940. When the defendant undertakes to justify an act, he must necessarily admit the facts to be true. Every special plea of justification must, therefore, state circumstances which either excuse the facts complained of, or show them to be lawful.(b)

§4.-A plea must be single.

2941. Pleas are either single or double, that is, the defendant may rely upon a single ground, or plead several matters in his defence. At common law the defendant could only have pleaded one single matter to the whole declaration. This often abridged the justice of the defence, and caused perplexity and inartificial pleading; the party endeavoring to crowd as much reasoning as he could in his plea, however intricate, repugnant, or contradictory he might be by so doing. But when the declaration consisted of several parts, the defendant might have pleaded several matters to the different parts; as, not guilty to part of the declaration, and to another part a justification or a release; and when there were several defendants, each of them

(a) 1 Saund. 28, n. 1, 2, 3; 296 n. 1; Postmaster v. Reeder, 4 Wash. C. C. 678; Nevins v. Keeler, 6 John. 65; Van Ness v. Hamilton, 19 John. 349. (b) Gibbon v. Pepper, Salk. 637; Scott ». Shepherd, 3 Wils. 411; 1 Saund. 13, 14, n. 3; 28, n. 1; Steph Pl. 219.

No. 2912.

Book 4, tit. 8, chap. 6, cl. 2, sec. 2, § 5.

No. 2942.

might have pleaded a single matter to the whole, or several matters to different parts of the declaration. To remedy the inconveniences of the common law, the statute for the amendment of the law was enacted, (a) by virtue of which the defendant or tenant in any action or suit, or any plaintiff in replevin, in any court of record, may, with the leave of the said court, plead as many several matters thereto, as he shall think necessary for his defence.(b) But the statute does not appear to aid duplicity in the same plea.

When several pleas are pleaded, in virtue of the statute, in bar to one and the same thing or demand, each of them operates and is treated as if it were pleaded alone; each must stand or fall by itself; (c) no one of them can have the effect of dispensing with the proof of what is denied by another.

Duplicity must be objected to by special demurrer, and the particular duplicity must be particularly pointed out, and if the plaintiff do not demur he must reply to both material parts of the plea.

§ 5. A plea in bar must be certain.

2942. By certainty in pleading is meant a clear and distinct statement of the facts, which constitute the cause of action, or ground of defence, so that they can be understood by the party who is to answer them, by the jury who are to ascertain the truth of the allegations, and by the court who are to give the judgment. Lord Coke states certainty to be of three sorts: 1, certainty to a common intent; 2, certainty to a certain intent in general; 3, certainty to a certain intent in every particular.(d)

(a) 4 Ann. c. 16, s. 4, 5.

(6) Chit. Pl. 512; 1 Saund. 337, a; Bac. Ab. Pleas, K 1; Com. Dig. Pleader, E 2, 5; Id. C 41: Gould. on Pl. c. 8, part 1, § 18, 25.

(c) Grills v. Mannell, Willes, 380; Kirk v. Nowell, 1 T. R. 125; Rogers r. Old, 5 S. & R. 411.

(d) In the case of Dovaston v. Payne, 2 H. Bl. 530, Buller, J., said he remembered to have heard Mr. Justice Aston treat these distinctions as a VOL. III.

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