| 词汇 | Color2 |
| 释义 | `1`Color2 `2` "Legal Lexicon": 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. 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. E.g., in trespass to land, the color universally given is that of a defective charter of the demise. 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. 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 therefore rely 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. Therefore, the plea in this case 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. --b-- |
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