Common Law Pleadings

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color:

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. [1]

     Excerpt from William Blackstone’s Commentaries on the Laws of England:

     “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.[2]

give color:

vb..(16c) Hist. To admit, either expressly or impliedly‘ by silence, that an opponent’s allegations appear to be meritorious.  *  In common-law pleading, a defendant’s plea of confession and avoidance had to give color to the plaintiff’s allegations in the complaint or the plea would be fatally defective.

References:

[1]: All definitions from: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black & Editor in Chief Bryan A. Garner. ISBN: 978-0-314-62130-6

[2]: 3 William Black stone, Commentaries on the Laws of England 309 (1768)

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Intro To Law

Pro Se Legal Self-Help

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