Color / Colored / Colorable

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notmartha
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Color / Colored / Colorable

Post by notmartha » Thu Feb 18, 2016 12:47 pm

See also Feign, Extortion, De facto,

KJV References

Prophasis, Greek Strong's #4392, is used 7 times in the New Testament. It is translated as pretence (3), cloke (2), show (1), colour (1). It is translated as “colour” in the following verse:
Acts 27:30-31 - And as the shipmen were about to flee out of the ship, when they had let down the boat into the sea, under colour as though they would have cast anchors out of the foreship, Paul said to the centurion and to the soldiers, Except these abide in the ship, ye cannot be saved.
For cross reference, here the other uses are provided:
Matthew 23:14 - Woe unto you, scribes and Pharisees, hypocrites! for ye devour widows' houses, and for a pretence make long prayer: therefore ye shall receive the greater damnation.
Mark 12:38-40 - And he said unto them in his doctrine, Beware of the scribes, which love to go in long clothing, and love salutations in the marketplaces, And the chief seats in the synagogues, and the uppermost rooms at feasts: Which devour widows' houses, and for a pretence make long prayers: these shall receive greater damnation.
Philippians 1:18 - What then? notwithstanding, every way, whether in pretence, or in truth, Christ is preached; and I therein do rejoice, yea, and will rejoice.
John 15:21-22 - But all these things will they do unto you for my name's sake, because they know not him that sent me. If I had not come and spoken unto them, they had not had sin: but now they have no cloke for their sin.
1 Thessalonians 2:5 - For neither at any time used we flattering words, as ye know, nor a cloke of covetousness; God is witness:
White is the presence of all colors. Whited walls and sepulchers are given the appearance (color) of something they are not.
Matthew 23:27-28 - Woe unto you, scribes and Pharisees, hypocrites! for ye are like unto whited sepulchres, which indeed appear beautiful outward, but are within full of dead men's bones, and of all uncleanness. Even so ye also outwardly appear righteous unto men, but within ye are full of hypocrisy and iniquity.
Acts 23:3 - Then said Paul unto him, God shall smite thee, thou whited wall: for sittest thou to judge me after the law, and commandest me to be smitten contrary to the law?
Webster’s Dictionary of the English Language, 1828
COLOR, noun
1. In physics, a property inherent in light, which, by a difference in the rays and the laws of refraction, or some other cause, gives to bodies particular appearances to the eye. The principal colors are red, orange, yellow, green blue, indigo and violet. White is not properly a color; as a white body reflects the rays of light without separating them. Black bodies, on the contrary, absorb all the rays, or nearly all, and therefore black is no distinct color. But in common discourse, white and black are denominated colors; and all the colors admit of many shades of difference.

4. Appearance to the mind; as, prejudice puts a false color upon objects.

5. Superficial cover; palliation; that which serves to give an appearance of right; as, their sin admitted no color or excuse.

6. External appearance; false show; pretense; guise.
Under the color of commending him,
I have access my own love to prefer.

9. Colors, with a plural termination, in the military art, a flag, ensign or standard, borne in an army or fleet.

10. In law, color in pleading is when the defendant in assize or trespass, gives to the plaintiff a color or appearance of title, by stating his title specially; thus removing the cause from the jury to the court.

COLOR, verb transitive

1. To change or alter the external appearance of a body or substance; to dye; to tinge; to paint; to stain; as, to color cloth. Generally, to color is to change from white to some other color

2. To give a specious appearance; to set in a fair light; to palliate; to excuse.
He colors the falsehood of Aeneas by an express command of Jupiter to forsake the queen.

3. To make plausible; to exaggerate in representation.
To color a strangers good, is when a freeman allows a foreigner to enter goods at the custom house in his name, to avoid the aliens duty.

COLORABLE, adverb Speciously; plausibly; with a fair external appearance.
Bouvier’s Law Dictionary, 1856
COLOR, pleading.

1. 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.

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.

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.

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.

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.

COLOR OF OFFICE, criminal law.

A wrong committed by an officer under the pretended authority of his office; in some cases the act amounts to a misdemeanor, and the party may then be indicted. In other cases, the remedy to redress the wrong is by an action.
Black’s Law Dictionary, 1st Edition, 1890
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Century Dictionary, an Encyclopedic Lexicon of the English Language, 1895
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Maxim
Error artfully colored is in many things more probable than naked truth; and frequently error conquers truth and reasoning.
Wex Legal Dictionary
Color
The appearance of a valid claim, right, or authority at a given point in time. The term is often used in hindsight when the claim, right, or authority actually proves to be invalid.

Color of Law
The appearance of a legal right to take some action, although the right may not actually exist.

Color of Title
A person has "color of title" to a piece of property when, for one reason or another, the document evidencing title (a deed, for example) is invalid.

Color of Office
An office holder's apparent right to take some action by virtue of holding that office. The office may be private or public, and the right may not really exist.

Colorable Claim
A plausible legal claim. In other words, a claim strong enough to have a reasonable chance of being valid if the legal basis is generally correct and the facts can be proven in court. The claim need not actually result in a win.

Colorable Transaction
An apparently valid transaction that may really be unlawful or illusory. Because the term is often used in hindsight when the transaction proves invalid, it may be intended as a synonym for sham transaction.
Miscellaneous Court Citations

HARRISON v. CHAMBERLIN. 1926
https://www.law.cornell.edu/supremecourt/text/271/191
“However, the court is not ousted of its jurisdiction by the mere assertion of an adverse claim; but, having the power in the first instance to determine whether it has jurisdiction to proceed, the court may enter upon a preliminary inquiry to determine whether the adverse claim is real and substantial or merely colorable. And if found to be merely colorable the court may then proceed to adjudicate the merits summarily; but if found to be real and substantial it must decline to determine the merits and dismiss the summary proceeding.”
“…a claim is merely colorable if on its face made in bad faith and without any legal justification.”
“Without entering upon a discussion of various cases in the Circuit Courts of Appeals in which divergent views have been expressed as to the test to be applied in determining whether an adverse claim is substantial or merely colorable, we are of opinion that it is to be deemed of a substantil character when the claimant's contention 'discloses a contested matter of right, involving some fair doubt and reasonable room for controversy,' Board of Education v. Leary, supra, 527 (149 C. C. A. 573), in matters either of fact or law; and is not to be held merely colorable unless the preliminary inquiry shows that it is so unsubstantial and obviously insufficient, either in fact or law, as to be plainly without color of merit, and a mere pretense.”
WILLIAM CHRISTY, PLAINTIFF IN ERROR, v. LODOVICK P. ALFORD, ADMINISTRATOR OF HENRY D. BULLARD, DECEASED.
https://www.law.cornell.edu/supremecourt/text/58/601
“…the definitions of the terms, title and color of title, which immediately follow, are: 'By the term title, as used in this section, is meant a regular chain of transfer from and under the sovereignty of the soil; and color of title is constituted by a consecutive chain of such transfer down to him, her, or them, in possession, without being regular, as if one or more of the memorials, or muniments, be not registered or not duly registered,'”
It is also urged that, in addition to what was said by the court, the jury should have been told that the defendant, having no title or color of title such as that prescribed by the statute, could not have the benefit of the bar, by virtue of the title or color of title of Alford, under whom he claimed; for the reason that, claiming a bar under the statute, he had to show the circumstances prescribed by it; and the title prescribed having to be a transfer down to him in possession, the requirement was not complied with by showing a title in him under whom he claimed; and the consequence is, that the defendant, instead of proving himself within the rule required, shows himself out of it, and not entitled to the bar.
He was, therefore, not setting up color of title in another, but in himself. It is true, the record does not show how this privity was created, nor that the defendant was in a consecutive chain of transfer. But the necessity for this proof was done away by the admission of the plaintiff, that the defendant was in possession under color of title; for, as has just been observed, this was equivalent to an admission that he was in under such a chain of transfer from the sovereignty of the soil.
OAKLEY v. GOODNOW. 1886
https://www.law.cornell.edu/supremecourt/text/118/43
“This presents a federal question, and gives us jurisdiction, but as the decision was in accordance with our judgment in Provident Sav. Soc. v. Ford, 114 U. S. 635, S. C. 5 Sup. Ct. Rep. 1104, the motion to affirm is granted. In that case it was said, (page 641:) 'We know of no instance where the want of consideration in a transfer, or a colorable transfer of a right of action from a person against whom the defendant would have a right of removal to a person against whom he would not have such a right has been held a good ground for removing a cause from a state court to a federal court. Where an assignment of a cause of action is colorably made for the purpose of giving jurisdiction to the United States court, section 5 of the act of congress of March 3, 1875, * * * has now given to the circuit courts power to dismiss or remand the cause at any time when the fact is made to appear; and, by analogy to this law, it may perhaps be a good defense to an action in a state court to show that a colorable assignment has been made to deprive the United States court of jurisdiction; but, as before said, it would be a defense to the action, and not a ground of removing that cause into the federal court.'”
“Our attention was called in the argument to the fact that in the present case it appears that the assignee 'is only a nominal party to said suit,' and that the assignor 'directed the commencement of the suit, employed counsel to prosecute the same, and is directing and controlling its prosecution,' while in the other it was only alleged that the assignment was 'merely colorable,' and that the plaintiff was 'not the real party in interest;' but the opinion in the other case (page 638) shows that it was further alleged that the assignment 'was made without any consideration, and merely for the purpose of prosecuting and collecting' the claim for the benefit of the assignor, 'and to avoid the necessity of' the assignor's 'giving security for costs as a non-resident of this state; and to embarrass, and, if possible, prevent the transfer of this action to the United States courts; and that the controversy * * * is in reality and in substance between the defendant' and the assignor, 'who are citizens of different states.' The two cases are thus substantially alike, and this is clearly governed by that. While, therefore, the courts of the United States have, under the act of 1875, the power to dismiss or remand a case, if it appears that a colorable assignment has been made for the purpose of imposing on their jurisdiction, no authority has as yet been given them to take jurisdiction of a case by removal from a state court when a colorable assignment has been made to prevent such a removal. Under the law as it now stands resort can only be had to the state courts for protection against the consequences of such an encroachment on the rights of a defendant.”
Minneci v. Pollard, 2011
While serving time in a privately operated federal prison, Respondent Richard Lee Pollard fell and broke both his elbows. Pollard insists that the treatment he received from various prison employees following the accident amounted to cruel and unusual punishment, a violation of the Eighth Amendment. Thus, Pollard sued the individual offending employees. However, the district court dismissed Pollard's claim, finding that alternative tort-based remedies barred the constitutional charge. The United States Court of Appeals for the Ninth Circuit reversed, finding that, because the private prison and its employees operate under the "color of federal law," Pollard has a valid claim under Supreme Court precedent. Petitioners Margaret Minneci and her fellow employees appeal, arguing that Supreme Court precedent limits extensions of this type of claim to cases where adequate state-law remedies do not exist. In response, Pollard maintains that he is among the category of victims that the Supreme Court sought to protect in decisions carving out this type of claim. The Supreme Court’s decision in this case could have a significant impact on the types of liabilities faced by private companies contracting with the federal government.
Oliver Wendell Holmes, Jr. said:
"A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used."
“It may be true that in the region of attempts, as elsewhere, the law began with cases of actual intent, as those cases are the most obvious ones. But it cannot stop with them, unless it attaches more importance to the etymological meaning of the word attempt than to the general principles of punishment. Accordingly there is at least color of authority for the proposition that an act is punishable as an attempt, if, supposing it to have produced its natural and probable effect, it would have amounted to a substantive crime.”
18 U.S. Code § 242 - Deprivation of rights under color of law
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.
18 U.S. Code § 2337 - Suits against Government officials
No action shall be maintained under section 2333 of this title against—
(1) the United States, an agency of the United States, or an officer or employee of the United States or any agency thereof acting within his or her official capacity or under color of legal authority; or
(2) a foreign state, an agency of a foreign state, or an officer or employee of a foreign state or an agency thereof acting within his or her official capacity or under color of legal authority.
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