Definition
A peremptory defence is a defence that challenges the plaintiff's right to maintain the action altogether — not merely the sufficiency of their pleading or the facts alleged, but the underlying legal basis for the suit itself. It asserts either that the plaintiff never possessed the right to bring the action, or that whatever right once existed has since been extinguished, expired, or otherwise legally determined before judgment.
This stands in contrast to a dilatory defence, which does not attack the merits or the plaintiff's underlying right but instead objects to the form, timing, or procedural posture of the suit — seeking delay or dismissal without prejudice rather than final resolution. A peremptory defence, when successful, ends the litigation on the merits or on grounds that bar any future action on the same claim.
---
Common Confusion
PEREMPTORY DEFENCE vs. PEREMPTORY CHALLENGE: The word "peremptory" appears in two distinct legal contexts that share no substantive connection. A peremptory challenge is the procedural right of a party in jury selection to strike a prospective juror without stating a reason. A peremptory defence is a substantive pleading concept in civil procedure. Researchers encountering "peremptory" in historical sources must determine from context which usage is intended. The encyclopedia entry linked above addresses peremptory challenges in jury selection; the present entry addresses the defence doctrine.
PEREMPTORY DEFENCE vs. DILATORY DEFENCE: The dilatory/peremptory distinction was fundamental to classical common law pleading and is the organizing contrast for understanding this term. A dilatory defence delays; a peremptory defence defeats. Modern procedural codes have largely absorbed both categories into general motion and answer practice, but the distinction remains analytically important when reading historical pleadings.
---
Why It Matters in Research
The term is primarily a creature of formal common law pleading doctrine and appears most frequently in treatises and reported cases from the eighteenth and nineteenth centuries. Researchers working with historical civil pleadings — declarations, pleas in bar, pleas in abatement — will encounter the peremptory/dilatory taxonomy as an organizing framework. Understanding where a particular plea falls within that framework determines its procedural consequences: a peremptory defence that succeeded operated as a final judgment; a dilatory defence that succeeded typically permitted the plaintiff to refile.
Modern procedural codes (Fed. R. Civ. P. and state equivalents) do not use the term "peremptory defence" as a formal category. The functions once served by peremptory defences now appear under affirmative defences, motions to dismiss for failure to state a claim, and pleas of res judicata, statute of limitations, or release. When a researcher encounters "peremptory defence" in a nineteenth-century American or English source, the question to ask is: what specific ground is being asserted — prior judgment, release, accord and satisfaction, running of limitations — and how does that ground map onto the modern procedural equivalent?
Cross-corpus researchers should note that the term carries more explicit taxonomic weight in equity pleading treatises than in common law pleading guides, though it appears in both. Bouvier's Institutes (the internal treatise reference in the dictionary definition) provides the most systematic classical treatment.
---
Historical Dictionary Support
Bouvier's Law Dictionary defines a peremptory defence as one "which insists that the plaintiff never had the right to institute the suit, or that, if he had, the original right is extinguished or determined," citing Bouvier's Institutes at n. 4206. This formulation captures both temporal variants of the doctrine cleanly: the defence that the plaintiff's right never existed at all, and the defence that it once existed but has since been cut off.
The Bouvier definition is precise for its period but reflects a formal pleading world that has substantially dissolved. It does not address how courts treated mixed cases where the plaintiff's right was partially extinguished, nor does it map the doctrine onto equity practice, where analogous defences operated under different nomenclature. Researchers relying solely on Bouvier should supplement with Gould's Treatise on the Principles of Pleading (1832) or Stephen's Principles of Pleading (various editions) for a fuller picture of how the dilatory/peremptory distinction functioned in practice.
No significant divergence among historical sources on the core definition: the peremptory/dilatory distinction was well-settled doctrine by the time American legal dictionaries were compiled, and authorities are consistent on the basic formulation.
---
Jurisdictional Note
The peremptory/dilatory defence taxonomy was part of the common law pleading system shared across English and American jurisdictions before code pleading reforms. Jurisdictions that adopted the Field Code reforms (beginning 1848 in New York) and later the Federal Rules (1938) formally abandoned the taxonomy, though courts occasionally invoke the underlying concepts. Researchers working in jurisdictions that retained common law pleading longer — or in pre-reform historical materials — will find the term more operationally significant.
---
Encyclopedia Cross-Reference
Jury Selection — Voir Dire, Peremptory Challenges, and Batson (The Law Mind Criminal Law Encyclopedia) — addresses the separate doctrine of peremptory challenges in jury selection. Relevant here only to distinguish the two uses of "peremptory" in legal discourse.
---