Colonel

An officer in the
army, next below a brigudier general,
bears this title.

COLONY', a union of citizens or
subjects who have left their country to
people another, and remain subject to
the mother country. 3 W. C. C. R.
287. The country occupied by the
colonists is also called a colony. A
colony differs from a possession, or a
dependency, (q. v.) For a history of
the American colonies, the render is
referred to Story on the Constitution,
book I.; 1 Kent, Com. 77 to 80; 1
Dane’s Ab. Index, h. t.

COLOUR, plea/ling, is of several
kinds, namely, express colour, and im-
plied colour.

2. — Krprcss colour, is defined to be
a feigned matter, pleaded by the defen-
dant, in an action of trespass, from
which the plaintiff seems to have a
good cause of action, whereas he has
in truth only an apjiearancc or colour
of cause. Bac. Ab. Trespass, 1 4.

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263

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 gene-
ral issue in terms, by which the whole
question is referred to the jury ; yet, if
the defendant in an action of trespass,
bo 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 plamtiil* or supposing
him to have an appearance of title, bid
indeed in point of law, but of which
the jury are not competent judges. 3
111. Com. 309. Suppose, for example,
that the plaintiff’ was in wrongful pos-
session of the close, without any
further appearance of title than the
possession itself, at the time of the tres-
pass 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 lor want
of colour, are driven to plead the gene-
ral issue of not guilty. By this plea
an issue is produced whether the de-
fendants are guilty or not of the tres-
pass; but upon the trial of the issue, it
will be found that the question turns
entirely upon construction of law. The
defendant^ say they arc not guilty of
the trespasses, because they are not
guilty of breaking the close, of the plain-
tijjy as alleged in the declaration; and
that they are not guilty of breaking
the close of the plaintiff, because they
themselves had the properly 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, hut made continual claim
till the death of the disseisor ; after
whose death, the descent being cast
upon the heir, tho disseisee entered
upon the heir, and afterwards died,
when the remainder took effect in the
said defendant who demised to the I
other defendant. Now, this title in- ;

volves a legal question, namely, whether
continual claim will not preserve the
right of entry in the disseisee, notwit h-
standing a descent cast on the heir of
the disseisor. (Sec ns to this point,
Continual Claim.) The issue how-
ever is merely not guilty, and this is
triable by jury ; and the effect, there-
fore, 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 he 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 hank,
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 Ik* attained ; for then tho
plaintiff, if disposed to question the
sufficiency of the title, may demur to
the plea, and thus refer tho question to
the decision of the judges. But such
plea if pleaded simply, according to
the state of the fact, w ould be informal
for want of colour; and lienee arises a
difficulty.

4. — The pleaders of former days,
contrived to overcome this difficulty in
the following singular manner. In
such case ns that supposed, the plea
wanting implied colour, they gave in
lieu of it an cjprcss one, by inserting a
fictitious allegation of some colourable
title in the plnintift', which they, nt the
same time avoided by the preferable
title of tho defendant. See Sleph. PI.
225 ; Brown’s Entr. 343, for u form of
the plea.

5. — Formerly various suggestions of
apparent right, might lie adopted ac-
cording to the fancy of the pleader;
and though tho same latitude is, per-
haps, still available, yet, in practice, it
is unusual to resort to any except cer-
tain 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 the demise.

See, in general, 2 Saund. 410; 10
Co. 88; Cro. Eli/.. 70; 1 List, 215;
Duct. 1*1. 17 ; Doct. & Stud. lib. 2, c.

264

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63 ; Bac. A hr. Pleas, I 8 ; Trespass, 1
4 ; 1 Chit. PI. 500 ; Steph. on PI. 220.

6. — Implied colour is that in plead-
ing 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. PI. 225.

7. — It is a rule that every pleading
by way of confession and avoidance,
must give colour ; that is, it must ad-
mit 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 tlie defendant did, ns alleged in
the declaration, execute the deed, and
break the covenant therein contained,
and would therefore, primn 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 im-
pliedly admits, that the defendant has,
prima facie, a good defence, namely,
that such release was executed ns
alleged in the plea ; and that the de-
fendant therefore would l>e discharged;
but relics on new matter by whieh the
plea is avoided, namely, that the re-
lease was obtained by du mss. The
plea, in this case, therefore, gives
colour to the declaration, and the repli- i
cation, to the plea. But let it bo sup-
posed that the plaintiff* has replied,
that the release was executed by him, '
but to another person, and not to the i
defendant ; this would lx? an informal
replication wanting colour; been use,
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. PI. 220; 1 Chit. PI. 498;

Lawes Civ. PI. 120; Arch. PI. 211 »
Doct. PI. 17; 4 Vin. Abr. 552; Bac-
Abr. Pleas, Arc. I 8; Com. Dig. Pleader,
3 M 40, 3 M 41. See an example of
giving colour in pleading in the Roman
law, Inst. lib. 4, tit. 14, De replica-
tionihus.

Colouk or office, criminal late, is
a wrong committed by an officer under
the pretended authority of his office;
in some cases the act nrnounts to a
misdemeanor, and the party may then
be indicted ; in other cases, the remedy
to redress the wrong is by an action.