Definition
Colourable pleading is a formal common law pleading device in which a defendant, rather than denying the plaintiff's right outright, admits a *colorable* — that is, an apparently valid but legally deficient — version of the plaintiff's claim, then immediately pleads matter that defeats it. The technique was used in traverses and pleadings to narrow and sharpen the issue presented to the jury.
The practice operated specifically through the grant of "colour." A defendant who possessed a purely legal defense (such as a right derived from a deed or title) could not simply deny the plaintiff's apparent right without leaving the dispute in a posture unsuitable for clean legal resolution. Instead, the defendant would concede an apparent, colorable right in the plaintiff — enough to make the plaintiff's claim look plausible on its face — and then answer it with a superior legal title or defense. This gave the plaintiff "colour," meaning a semblance of right, while positioning the defendant's superior claim for adjudication.
Colourable pleading belongs to a cluster of refined common law pleading techniques that largely disappeared with the abolition of the forms of action and the adoption of code and notice pleading in the nineteenth and twentieth centuries.
---
Common Language
Modern common usage (Wiktionary): "Colourable" means appearing valid or genuine on its face; plausible; having the appearance of right or authority. Often carries a slightly pejorative connotation — something that looks legitimate but may not be.
Historical common usage (Webster's 1913): "Colorable" — having color or the appearance of right; specious; as, a colorable excuse or pretext.
The common meaning captures the surface sense of the legal term but misses the technical function. In ordinary speech, calling something "colourable" is often mildly disparaging — suggesting a pretense or cover. In colourable pleading, however, the admitted colourable right was a deliberate, structured concession by the defendant, not a deceptive maneuver. The device was a formalized technique for getting genuine disputes about competing titles or rights to a proper legal issue. The appearance of right admitted was real enough to ground the litigation; the defendant simply held a better one.
---
Common Confusion
Colourable pleading is sometimes conflated with sham or frivolous pleading, which it resembles superficially because both involve an apparent or fictitious element. The distinction is important: sham pleading was condemned as an abuse; colourable pleading was a sanctioned and technically sophisticated practice that courts required in certain circumstances. The word "colourable" in other legal contexts can indeed mean fraudulent or pretextual — as in "colourable imitation" in trademark law or "colourable" compliance with an injunction. Researchers encountering the word in historical sources must determine from context whether it describes the pleading device described here or the broader pejorative sense.
---
Why It Matters in Research
Researchers working in pre-code pleading materials — particularly English common law sources from the sixteenth through early nineteenth centuries — will encounter colourable pleading as a technical term of art in the context of pleadings in ejectment, trespass, and real property actions. Several navigational points:
**Historical sources are sparse and presuppose knowledge.** Burrill's entry is characteristically compressed, pointing only to Reeves' History of English Law without unpacking the mechanics. Researchers who encounter the term in primary sources without background in common law forms of action may not recognize it as a term of art at all, mistaking it for a general description of a specious pleading.
**Ejectment is the core context.** The practice of giving colour was most fully developed in the action of ejectment and in real property pleading more broadly, where competing title claims required a framework for tendering a clean legal issue. The fictional elements of the old ejectment action — the fictitious lessors and casual ejectors — are historically connected to the same impulse toward controlled issue formation that gave rise to colourable pleading.
**The term is essentially archaic in American practice.** With the Field Code reforms beginning in the 1840s and the eventual adoption of the Federal Rules of Civil Procedure in 1938, the forms of action and their attendant pleading technicalities were abolished. Modern pleading doctrine — notice pleading under Rule 8, and the plausibility standard of Twombly and Iqbal — operates in an entirely different conceptual universe. A researcher encountering colourable pleading in American sources after roughly 1850 should treat it as either a historical reference or a sign that the author is working in a jurisdiction that retained common law pleading forms longer than most.
**Jurisdictional survival.** English common law pleading survived longer in some American states than others. Researchers in older case law from states that delayed code adoption should be alert to continued technical use of the term.
---
Historical Dictionary Support
Burrill's Law Dictionary (1871) defines colourable pleading simply as "the practice of giving colour in pleading," with a single citation to Reeves' History of English Law. This compressed treatment reflects Burrill's assumption that his readers would be practitioners trained in common law forms. The definition is accurate as far as it goes but provides no practical mechanics.
The entry's reliance on Reeves signals that by 1871 colourable pleading was already primarily a historical subject rather than live practice — Reeves wrote a descriptive history of English law, not a practitioner's manual. Burrill makes no attempt to map the device onto contemporary American pleading, further confirming its archaic status at the time of publication.
Researchers should not expect later dictionaries — particularly American dictionaries compiled after code pleading took hold — to carry useful entries on this term. Its treatment in historical sources reflects the assumption that any competent pleader would already understand the mechanics from training, not from looking them up.
---
Encyclopedia Cross-Reference
For the modern pleading standards that displaced common law pleading devices, including colourable pleading: civpro_2 — Federal Question Jurisdiction: 28 USC 1331 and the Well-Pleaded Complaint Rule (The Law Mind Civil Procedure & Evidence Encyclopedia). Note that this entry addresses a distinct modern doctrine, but provides essential context for understanding how far modern pleading has departed from the technical issue-tendering function that colourable pleading served.
---