PLEAS IN CONFESSION AND AVOIDANCE. Pleas in confession and avoidance are divided, with respect to their subject matter, into: I. Pleas in justification or excuse. 2. Pleas in dis charge.
The effect of pleas in justification or excuse is to show that the plaintiff never had any right of action, because the act charged was lawful ; while the effect of pleas in discharge is to show some discharge or release of the matter complained of in the declaration ; that is, though there was once a right of action, it has been discharged or released by some subsequent matter. This division of the subject applies to picas only. Replica tions and subsequent pleadings in confession and avoidance are not subject to any such classification.
Pleadings in confession and avoidance, in common with all other pleadings that do not tender issue, con clude always with a verification and a prayer of judg ment.
Every pleading by way of confession and avoid ance must give color, that is, it must admit an apparent right in the opposite party, and rely on some new mat ter by which that apparent right is defeated. Such color as being inherent in the pleadings is called im plied color; but some circumstances of fact contain no inherent or implied color, and here the pleader wishing to plead by way of confession and avoidance must give color, by which is meant a "feigned matter," pleaded by the defendant in an action of trespass from which the plaintiff seems to have a good case of action, 'whereas he has in truth only an appearance or color of cause.
By pleading by way- of confession and avoidance the defendant gains several advantages : Thus, he spreads his title on record and obliges the plaintiff, if he regards it as not a lawful title as thus exhibited, to demur and present the question to the court, instead of its going- along with the other matters to the jury, as would have been the case upon a plea by way of tra verse. The plea in confession and avoidance also obliges the plaintiff to traverse or attack but a single link in the defendant's chain of title, and thus to admit all the others as good. Such a plea also gains for the party- the affirmative of the issue, and therefore the right to open and close.
The plaintiff was not allowed in his replication to traverse the fictitious matter suggested by way, of color ; for its only object being to circumvent a diffi culty of form, such a traverse would be wholly foreign to the merits of the case.
The practice of giving express color is now con fined to actions of trespass, and in those actions to the plea only. It is unusual to resort to any, except cer tain known fictions which long usage has applied to the particular case. The fictitious averment must consist of such matters as, if it were effectual, would sustain the nature of the action, and the right suggested must be colorable only, for if more than colorable the plain tiff would, by the defendant's own showing, be entitled to recover.