
    John Singleton, et al., ads. James Millet.
    In an action of trespass quare clausum fregit, defendant pleaded liberum tenementum. Replication de injuria sua propria, absque tali causa, and issue thereon. Held, that the defendant by his plea had tendered a new issue, and that the defendant’s counsel was therefore entitled to the reply in argument in the Circuit Court, 
    
    The plea of liberum tenementum gives the plaintiff color of title, 
    
    This was an action of trespass quare clausum fregit.
    
    The defendants pleaded liberum tenementum. The plaintiff replied, de injuria sua propria, absque tali causa ; and issue was joined thereon.
    Evidence was given on both sides, on the point of title.
    The defendants’ counsel claimed the right of replying in argument; but the presiding Judge ruled, that he was not entitled to reply.
    
    The case was tried before Mr. Justice Gantt, at Sumpter, at a special Court held in July, 1818.
    There was a verdict for the plaintiff for $900.
    The defendants now moved for a new trial on several grounds, of which it is only necessary to state the following :
    Because the defendants’ counsel was precluded from the right of reply.
    
    
      
       1 Hill, 38; Dud. 325, Rice, 262.
    
    
      
       2 Strob. 176; 2 Hill, 415.
    
   The opinion of the Court was delivered by

Cheves, J.

The Court is of opinion the counsel for the defendants was entitled to the reply in the argument. His plea admitted the possession, and the trespass charged in the plaintiff’s pleadings, and tendered 'a new issue ; this, according to the general practice, and according *to the 53d Rule of Court, I Const. Rep. XXI., entitled him to the reply.

Blanding, for the motion. Spann and Levy, contra.

It was argued that this plea was defective, inasmuch as it did not give the plaintiff color of title, (1 Chitty on Pleadings, 498, 500,) and that it, therefore only amounted to the general issue. The plea of liberum, tenementum, dn this case, was pleaded according to the best precedents ; and the plea thus pleaded, says Chitty, may be considered as giving implied color, for it admits that in point of fact the plaintiff may have been in possession of the locus in quo, (which, as in the case of personal property, prima facie entitles the plaintiff to maintain trespass against all the world, but the rightful owner,) but insists in point of law, such possession is unlawful.” The plea then did give color to the plaintiff, if that were necessary to make it perfect.

I am, therefore, of opinion that the plea was well pleaded, that the defendant’s counsel was entitled to the reply, and consequently that a new trial ought to be granted.

CoIíOook, Nora and Johnson, JJ., concurred. 
      
       Made 62d in 1837.
     