COLOR

color,n.1. Appearance, guise, or semblance; esp., the appearance of a legal claim to a right, authority, or office <color of title> <under color of state law>.2.Common-law pleading. An apparent, but legally insufficient, right or ground of action, admitted in a defendant’s pleading to exist for the plaintiff; esp., a plaintiff’s apparent (and usu. false) right or title to property, the existence of which is pleaded by the defendant and then attacked as defective, as part of a confession and avoidance to remove the case from the jury by turning the issue from one of fact to one of law. See GIVE COLOR. [Cases: Pleading  133.]

“It is a rule of pleading, that no man be allowed to plead specially such a plea as amounts only to the general issue, or a total denial of the charge; but in such case he shall be driven to plead the general issue in terms, whereby the whole question is referred to a jury. But if the defendant, in an assise or action of trespass, be desirous to refer the validity of his title to the court rather than the jury, he may state his title specially, and at the same time give colour to the plaintiff, or suppose him to have an appearance or colour of title, bad indeed in point of law, but of which the jury are not competent judges. As if his own true title be, that he claims by feoffment with livery from A, by force of which he entered on the lands in question, he cannot plead this by itself, as it amounts to no more than the general issue …not guilty in an action of trespass. But he may allege this specially, provided he goes farther and says, that the plaintiff claiming by colour of a prior deed of feoffment, without livery, entered; upon whom he entered; and may then refer himself to the judgment of the court which of these two titles is the best in point of law.” 3 William Blackstone, Commentaries on the Laws of England 309 (1768).

express color.Hist. A defendant’s admission that the plaintiff has an apparent right to something coupled with an assertion that the plaintiff’s right is legally inferior to the defendant’s right to the same thing. • This pleading was typically used in cases of trespass to land by making fictitious allegations that put the plaintiff’s ownership of the land in question. For instance, the defendant would admit that the plaintiff had shown apparent ownership of the land by possessing it but then claim that the plaintiff’s title was somehow defective, so that the plaintiff did not actually own the land. This pleading was abolished by the Common-Law Procedure Act of 1852, 15 & 16 Vict., ch. 76, § 64.

“Express color is a fictitious allegation, not traversable, to give an appearance of right to the plaintiff, and thus enable the defendant to plead specially his own title, which would otherwise amount to the general issue. It is a licensed evasion of the rule against pleading contradictory matter specially.” Benjamin J. Shipman, Handbook of Common-Law Pleading § 202, at 351 (Henry Winthrop Ballantine ed., 3d ed. 1923). implied color. 1. A defendant’s tacit admission of a plaintiff’s prima facie case by failing to deny it. 2. An apparent ground of action that arises from the nature of the defense, as when the defense consists of a confession and avoidance in which the defendant admits the facts but denies their legal sufficiency. • This is a quality inherent in all pleadings in confession and avoidance. [Blacks Law 8th]