Definition
A dilatory plea is a plea in civil procedure that challenges the current action on technical, procedural, or jurisdictional grounds — not by denying the plaintiff's underlying right or the merits of the claim, but by asserting some defect or disability that defeats this particular suit as presently framed or brought. A successful dilatory plea does not resolve the dispute on its merits; it merely suspends, postpones, or defeats the immediate proceeding, leaving the plaintiff free to bring a proper action.
The category historically encompassed three main types of challenge: pleas to the jurisdiction (contesting the court's authority to hear the matter), pleas in abatement (challenging defects in the form, timing, or parties of the action), and pleas to the disability of a party (contesting the plaintiff's or defendant's legal capacity to sue or be sued). What unified them was the structural feature Burrill identifies precisely: such a plea questions the propriety of the remedy rather than the existence of the right.
Common Confusion
Dilatory plea is frequently confused with demurrer and with plea in bar. The distinctions matter:
A demurrer admits the facts as pleaded but argues they disclose no legal claim — it attacks the legal sufficiency of the plaintiff's case. A plea in bar answers the merits and, if sustained, extinguishes the plaintiff's right to bring the claim again. A dilatory plea does neither: it concedes (at least provisionally) that a valid claim may exist and that the court might have the right claim before it eventually — it objects only that this action, as brought here and now, should not proceed. The practical consequence is decisive: losing a plea in bar forecloses the plaintiff; losing a dilatory plea typically means only that the plaintiff must refile, repair the defect, or proceed in a different court.
Recognized Forms
/SUBTYPES
1. Plea to the jurisdiction — argues the court lacks subject matter or personal jurisdiction over the action.
2. Plea in abatement — challenges a defect in the writ, declaration, parties, or form of action that can be corrected and the suit recommenced.
3. Plea to the person (disability) — contests the legal capacity of the plaintiff to maintain the action or the defendant to be sued in the current posture.
Why It Matters in Research
Researchers working in pre-twentieth-century common law pleading sources will encounter dilatory pleas frequently and in forms that have no modern procedural analog. The terminology largely disappeared from American practice with the adoption of the Federal Rules of Civil Procedure in 1938 and equivalent state reforms, which collapsed most of these challenges into motions to dismiss under what is now Rule 12. British practice followed a parallel trajectory with the Judicature Acts. When reading nineteenth-century reports and chancery records, a dilatory plea operates as a distinct procedural moment in the pleading sequence — it had to be pleaded before the general issue and before any plea in bar, and courts scrutinized its timing carefully.
The research trap: in older sources, "dilatory" often functions as a standalone noun. Burrill notes the term "anciently termed a dilatory" — so a source that reads "the court overruled the dilatory" is referring to this same plea, not to delay tactics in the generic sense.
Jurisdictional variation also affected the reach of the category. Equity courts treated dilatory pleas differently from courts of law, and some equity-specific forms — such as the plea of another suit pending (lis pendens) — were classed as dilatory in equity but had no direct parallel at law. Researchers moving between law and equity sources should not assume equivalence.
For criminal law research: the term appears occasionally in older criminal pleading contexts, though its natural home is civil procedure. Modern criminal procedure has absorbed equivalent challenges (jurisdiction, capacity, defective indictment) into pretrial motions practice.
Historical Dictionary Support
The three source dictionaries reveal a clear conceptual core with meaningful variation in depth. Bouvier offers the thinnest treatment — defining the dilatory plea by what it does not do (it does not answer as to the general right) rather than by its positive character, and deflecting to his entry on PLEA. This is useful as a pointer but inadequate as a standalone account. Rapalje & Lawrence omit any substantive entry, noting only a cross-reference to PLEA — unhelpful for researchers relying on that volume.
Burrill is the most instructive of the three and aligns closely with Blackstone's Commentaries (3 Bl. Com. 391, cited by Burrill), which is the foundational common law account. Burrill's formulation — questioning "the propriety of the remedy rather than denying the injury" — captures the essential logic cleanly and reflects the technical pleading structure of the period. His note that the plea is "founded on some matter of fact, not connected with the merits" helpfully distinguishes it from demurrer, which rests on law rather than fact.
What the historical dictionaries collectively miss: none addresses the procedural sequencing rules governing when a dilatory plea had to be entered, the consequences of waiver by pleading over, or the transition away from this terminology under reformed codes of procedure. Researchers need to consult treatises on common law pleading — Gould, Stephen, or Chitty — to reconstruct the full procedural context.
Jurisdictional Note
The dilatory plea as a formal procedural category belongs to common law pleading systems and has been substantially abolished in American federal practice and most state systems through rules-based reform. In jurisdictions that have not fully modernized their civil procedure codes, vestiges of dilatory plea terminology may persist in older case law and should be interpreted in the historical pleading context. Researchers working in Louisiana (which follows a civil law tradition) or in historical English equity will find different but analogous procedural devices.
Encyclopedia Cross-Reference
While dilatory pleas are a civil procedure concept, researchers tracing plea typology and the structural role of pretrial challenges in any proceeding may find relevant context in The Law Mind Criminal Law Encyclopedia: Arraignment and Entry of Plea (criminal_198).