Definition
Dilatory pleas are a category of defensive pleadings at common law that challenge the court's ability to proceed with a case on grounds unrelated to the underlying merits. Rather than contesting whether the plaintiff's claim is valid, a dilatory plea asserts some threshold defect — in jurisdiction, in the form of the proceeding, in the parties, or in the timing of the action — that must be resolved before the case can move forward.
The term is primarily a common law pleading concept. Under classical common law procedure, all pleas in a civil action divided into two broad classes: pleas in bar, which attacked the merits and, if successful, permanently barred the plaintiff's claim; and dilatory pleas, which, if successful, did not defeat the claim outright but only delayed or suspended the current proceeding. A plaintiff whose action was defeated by a dilatory plea could generally correct the defect and recommence.
Dilatory pleas historically fell into several recognized groupings: pleas to the jurisdiction (contesting the court's authority to hear the matter), pleas in suspension (asserting a temporary disability to sue, such as the plaintiff's lack of legal capacity), and pleas in abatement (challenging defects in the writ, parties, or form of the action). All shared the defining characteristic that they raised matters extrinsic to the substantive dispute.
---
Common Language
Modern common usage (Wiktionary): "Dilatory" as an ordinary English adjective means tending to cause delay; intended to gain time or defer action.
Historical common usage (Webster's 1913): "Dilatory" — tending to delay; given to procrastination; slow; tardy; as, a dilatory messenger.
The gap here matters for research. In ordinary usage, calling something "dilatory" is almost always pejorative — it implies bad faith delay. In legal usage, a dilatory plea is a formal, recognized procedural mechanism with a legitimate function. The word describes the plea's effect (delaying the main proceeding) rather than the pleader's motive. Courts and commentators have always acknowledged that dilatory pleas serve genuine procedural purposes, even as they also recognized potential for abuse.
---
Common Confusion
Dilatory pleas are frequently confused with pleas in bar. The distinction is structural and consequential: a successful plea in bar terminates the plaintiff's right of action permanently (res judicata, release, statute of limitations as a bar). A successful dilatory plea only suspends or abates the current proceeding; it does not extinguish the underlying claim. A plaintiff defeated by a dilatory plea typically retains the right to correct the defect and refile.
Dilatory pleas should also be distinguished from demurrers. A demurrer admits the facts alleged but argues they state no legal claim — it attacks the merits as a matter of law. Dilatory pleas attack the proceeding itself, not the legal sufficiency of the underlying claim.
---
Recognized Forms
/SUBTYPES
Three classical categories appear consistently across the common law authorities:
Pleas to the Jurisdiction: Assert that the court before which the action is brought lacks authority to hear the matter — whether for want of subject matter jurisdiction, territorial jurisdiction, or because the matter belongs exclusively to another tribunal.
Pleas in Suspension: Assert a temporary bar to the action, typically that some condition must be satisfied or some disability must be resolved before the case can proceed. Unlike pleas in abatement, these do not challenge the form of the proceeding but rather a circumstance that temporarily disables it.
Pleas in Abatement: Challenge defects in the writ, declaration, or parties — misnomer of a party, nonjoinder of a necessary party, coverture, pendency of a prior action for the same cause, or similar formal defects. If successful, the action was abated (ended), but the plaintiff could typically commence a new action with the defect corrected.
---
Why It Matters in Research
This term requires careful calibration when reading historical sources. Dilatory pleas belong almost entirely to the common law pleading system that was substantially displaced in American federal courts by the Federal Rules of Civil Procedure in 1938, and in most states by analogous procedural reforms across the nineteenth and twentieth centuries. Modern procedural equivalents — motions to dismiss for lack of jurisdiction, motions to dismiss for improper venue, motions challenging capacity or nonjoinder — perform similar functions but are not styled as "dilatory pleas."
Researchers working with pre-reform American cases, English common law materials, or any jurisdiction that retained common law pleading forms longer than most will encounter the term regularly and must understand its structural role. Black's Law Dictionary's definition references a Kansas case from the 1870s, which reflects a period when common law pleading categories were still operative in American courts.
A specific trap: Black's entry as reproduced in historical editions conflates two distinct legal systems in a single definition block. The definition running from "a class of defenses at common law" describes dilatory pleas correctly. The language about "Scotch law and practice" — referring to process by which persons, lands, or effects are seized in execution or security for debt — is an entirely separate entry for a different term (arrestment or diligence in Scots law) that appears to have been run together in the source text. Researchers should disregard the Scots law passage as a transcription artifact; it has no relationship to dilatory pleas.
For criminal procedure research, the encyclopedia cross-reference to arraignment and plea entry is relevant: while dilatory pleas are primarily a civil pleading concept, analogous preliminary pleas existed in criminal proceedings (challenging jurisdiction, the form of the indictment, or the capacity of the court), and understanding the taxonomy helps when reading older criminal procedure treatises.
---
Historical Dictionary Support
Black's Law Dictionary defines dilatory pleas as "a class of defenses at common law, founded on some matter of fact not connected with the merits of the case, but such as might exist without gross or more than ordinary negligence in the want of slight diligence." This definition captures the essential distinction from pleas in bar but is compressed. The reference to negligence reflects a procedural rule that dilatory pleas — particularly pleas in abatement — had to be raised promptly; a party who sat on a known dilatory ground and delayed raising it could be held to have waived it or be precluded from relying on it as a matter of court discretion.
Older treatise literature — Chitty on Pleading, Gould's Treatise on Pleading, and Stephen's Principles of Pleading — provides far more granular treatment than any dictionary entry, and researchers working seriously with common law pleading materials will find those sources more useful for understanding how dilatory pleas operated in practice. The dictionary definition is a useful orientation point, not a complete account.
What historical dictionaries tend to understate is the hostility courts developed toward dilatory pleas over time. By the nineteenth century, American and English courts regularly criticized the use of pleas in abatement as tactical delay devices, and procedural reforms were partly driven by a desire to eliminate them. That doctrinal hostility explains much of the push toward reformed pleading systems.
---
Jurisdictional Note
Louisiana, with its civil law heritage, does not employ the common law dilatory plea taxonomy in the same form, though the Louisiana Code of Civil Procedure recognizes "dilatory exceptions" as a distinct procedural vehicle — a parallel that is terminologically similar but doctrinally distinct. Common law Canadian jurisdictions retained common law pleading forms somewhat longer than most American states. Researchers working in English, pre-Judicature Act materials will encounter the fullest development of the doctrine.
---
Encyclopedia Cross-Reference
Arraignment and Entry of Plea — The Law Mind Criminal Law Encyclopedia
Guilty Pleas: Voluntariness, Collateral Consequences, and Withdrawal — The Law Mind Criminal Law Encyclopedia
---