Definition of COLOR


pleading. It is of two kinds, namely, express color, and implied
color. 2. Express color. This 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 color of cause. The practice of giving express color in pleas, obtained
in the mixed actions of assize, the writ of entry in the nature of assize,
as well as in the personal action of trespass. Steph. on Plead. 230; Bac.
Ab. Trespass, 14.

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
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 stated his title specially, by expressly giving color of title to the
plaintiff, or supposing him to have an appearance of title, had indeed in
point of law, but of which the jury are not competent judges. 3 Bl. Com.
309. Suppose, for example, that the plaintiff wag in wrongful possession
of the close, without any further 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 color, 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 a 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 the heir, the disseisee 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 no preserve the right
of entry in the disseisee, notwithstanding a descent cast on the heir of
the disseisor. (See as to this point, Continual Claim.) The issue however
is merely not guilty, and this is triable by jury; and the effect, therefore,
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 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 to a jury. If they have any
means of setting forth their title specially in the plea, the object will
be attained; for then the plaintiff, if disposed to question the sufficiently
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, according to the
state of the fact, would be informal for want of color; and hence arises
a difficulty.

4. 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 color, they gave in lieu of it an express one, by inserting a fictitious
allegation of some colorable title in the plaintiff, which they, at the
same time avoided by the preferable title of the defendant. S Step . Pl.
225 Brown"s Entr. 343, for a form of the plea. Plowd. Rep. 22 b.

5. 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 color universally given is that of a defective
charter of the demise. See, in general, 2 Saund. 410; 10 Co. 88; Cro. Eliz.
76; 1 East, 215; Doct. Pl. 17; Doct. &
Stud. lib. 2, c. 53; Bac. Abr. Pleas, I 8; Trespass, I 4; 1 Chit. Pl. 500
Steph. on Pl. 220.

6. Implied color. That in pleading 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. Pl. 225.

7. It is a rule that every pleading by way of confession and avoidance,
must give color; that is, it must admit 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 the defendant did, as alleged in the
declaration, execute the deed and break the covenant therein contained,
and would therefore, prima 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
impliedly admits that the defendant has, prima facie, a good defence, namely,
that such release was executed as alleged in the plea; and that the defefadant
therefore would be discharged; but relies on new matter by which the plea
is avoided, namely, that the release was obtained by duress. The plea, in
this case, therefore, gives color to the declaration, and the replication,
to the plea. But let it be supposed that the plaintiff has replied, that
the release was executed by him, but to another person, and not to the defendant;
this would be an informal replication wanting color; because, 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. Pl. 220; 1 Chit. Pl. 498;
Lawes, Civ. Pl. 126; Arch. Pl. 211; Doct. Pl. 17; 4 Vin. Abr. 552; Bac.
Abr. Pleas, &e. I 8; Com. Dig. Pleader, 3 M 40, 3-M 41. See an example
of giving color in pleading in the Roman law, Inst. lib. 4, tit 14, De replicantionibus.

Source: Bouviers Law Dictionary 1856 Edition