Definition
A peremptory plea is a plea addressed to the merits of an action — one that raises a substantive issue going to the plaintiff's right to recover, rather than merely objecting to procedural or technical defects in the proceedings. Also called pleas in bar, peremptory pleas ask the court to decide the case on its substance and, if successful, extinguish the plaintiff's claim entirely.
The term belongs to the classical system of common law pleading, in which every plea filed by a defendant had to be classified before its legal effect could be assessed. Peremptory pleas occupy the highest rung of that taxonomy: they do not delay, deflect, or transfer the action — they end it. A plea of not guilty in a criminal matter, a plea of payment or release in a civil debt action, and a plea of the statute of limitations are all examples of peremptory pleas in this sense.
Common Confusion
PEREMPTORY PLEAS vs. DILATORY PLEAS
These two categories are defined against each other. A dilatory plea does not contest the plaintiff's underlying right; it contests the plaintiff's present ability to proceed — by challenging the court's jurisdiction, the form of the writ, the plaintiff's legal capacity, or some other preliminary matter. It delays but does not bar. A peremptory plea contests the merits directly. A defendant might file a dilatory plea first, fail, and then be required to file a peremptory plea. The consequence of success also differs sharply: a successful dilatory plea typically allows the plaintiff to refile or correct; a successful peremptory plea raises a material issue that, once resolved against the plaintiff, bars the action permanently.
PEREMPTORY PLEAS vs. PEREMPTORY CHALLENGES
Modern practitioners encountering the word "peremptory" in a legal context are far more likely to associate it with jury selection — specifically, the right to excuse a juror without stating a reason. That usage and this one are unrelated beyond sharing the Latin root meaning absolute or final. Peremptory pleas concern the structure of a case's substantive defense; peremptory challenges concern the composition of the jury. Researchers working in older sources must not allow the familiar modern usage to distort their reading of historical pleading texts.
Recognized Forms
/SUBTYPES
Under classical common law pleading, peremptory pleas fell into two broad categories:
PLEA IN BAR. The most common form. The defendant asserts a fact or legal conclusion that bars the plaintiff's recovery entirely — for example, a general denial, a release, former recovery, or the statute of limitations. A plea in bar goes to the right of action itself.
PLEA IN ABATEMENT (distinguished). Though pleas in abatement were sometimes loosely grouped with peremptory pleas in certain authorities, the stricter and more accurate view — reflected in both Black's and Rapalje & Lawrence — is that pleas in abatement are dilatory, not peremptory. They attack the form or pendency of the action, not its substance. Researchers should note that this distinction was not always drawn consistently in older texts.
Why It Matters in Research
The term "peremptory pleas" is almost exclusively a creature of historical and common law pleading sources. It effectively disappeared from American procedural vocabulary with the adoption of the Federal Rules of Civil Procedure in 1938 and the subsequent spread of code pleading across state jurisdictions. Modern civil practice does not require defendants to classify their defenses under this taxonomy; the answer or motion to dismiss has absorbed the function.
Researchers working in pre-twentieth-century case law, English equity and common law reports, or treatises on common law pleading will encounter the term regularly. The key navigational point is this: when a historical court or treatise writer calls something a "peremptory plea," it signals that the plea is being evaluated for its capacity to raise a material issue — not merely to stall or reposition the action. That framing affects how courts treated pleading defects, what responses were available to the plaintiff, and what the consequence of a ruling on the plea would be.
There is also a cross-jurisdictional trap. Some nineteenth-century American jurisdictions used "peremptory plea" loosely to describe any defendant's plea that demanded judgment, blurring the bar/dilatory distinction that English common law courts maintained carefully. Researchers should not assume that a given court's use of the term tracks the strict classical definition.
The term has no meaningful modern criminal law application beyond the historical record, though the underlying concept — a defense that targets the merits and seeks final resolution — persists in the form of motions to dismiss for failure to state a claim, affirmative defenses, and pleas of not guilty.
Historical Dictionary Support
Black's Law Dictionary and Rapalje & Lawrence are in close agreement here, with both sources defining peremptory pleas by contrast to dilatory pleas and anchoring the concept in the phrase "pleas in bar." The shared formulation — that peremptory pleas are "pleaded to the merits of the action with the view of raising a material issue between the parties" — reflects a well-settled classical understanding, not a contested one.
What neither source does is account for the procedural obsolescence of the term. Both write as though the taxonomy remains operative for the practitioner, which was broadly true at the time of their publication but is no longer the case. Neither source addresses the variation in how American state courts applied the bar/dilatory distinction, some of which was already visible in nineteenth-century case law. Researchers should treat these entries as accurate descriptions of the classical framework while remaining alert to the messier practice they document.
Encyclopedia Cross-Reference
The Law Mind Criminal Law Encyclopedia: Arraignment and Entry of Plea (criminal_198) — for the modern criminal plea context that has partially absorbed the function of peremptory pleas in criminal proceedings.
The Law Mind Criminal Law Encyclopedia: Jury Selection — Voir Dire, Peremptory Challenges, and Batson (criminal_181) — for the distinct modern usage of "peremptory" in jury selection, useful for researchers needing to distinguish the two concepts.