Definition
Latin: "not to be barred." A technical pleading formula used in common law practice to open a plaintiff's replication to a defendant's plea in bar. The phrase signals that the plaintiff contests the legal sufficiency of the defense and asserts that, notwithstanding whatever the defendant has alleged, the plaintiff should not be barred from maintaining the action. The full formulaic introduction runs to the effect that the plaintiff "says that by reason of anything in the said plea alleged, he ought not to be barred from having and maintaining his aforesaid action against him, the said defendant, because he says..." followed by the substantive reply. The term names both the Latin phrase itself and, by extension, the entire commencement block of a replication that employs it.
Common Confusion
Precludi non is occasionally confused with the broader concept of preclusion in modern procedural law — the doctrine by which prior adjudication bars relitigation. The connection is etymological only. Precludi non belongs entirely to the formal architecture of common law pleading and has no operative meaning in modern civil procedure. A researcher encountering "preclusion" in a contemporary context is looking at a substantively different body of doctrine (res judicata, collateral estoppel) with no functional relationship to this formula.
Why It Matters in Research
This term will appear almost exclusively in pre-nineteenth-century common law pleading materials, English practice manuals, and American treatises written before code pleading displaced the common law forms. It is a marker of the formal pleading system that governed actions at common law before the Field Code (New York, 1848) and its state-by-state successors collapsed the elaborate sequence of declaration, plea, replication, rejoinder, surrejoinder, rebutter, and surrebutter into simplified pleading regimes.
Researchers working in colonial American records, early federal court files, or English common law proceedings will encounter precludi non as a routine structural feature of a replication to a plea in bar — not as a substantive legal argument but as the ceremonial opening of one. Its presence tells the researcher: (1) the defendant has interposed a plea in bar, asserting some fact or legal ground that should defeat the action entirely; (2) the plaintiff is responding with a replication, not a demurrer; and (3) what follows the formula will contain the plaintiff's affirmative answer to that plea.
The critical trap for modern researchers is treating this phrase as having independent legal significance. It carries none on its own — it is a required form, not an argument. Missing the formula in a manuscript pleading or transcript means a scrivener may have abbreviated or omitted routine language; its absence does not indicate a defective pleading strategy. Conversely, its presence does not tell the researcher anything about the merits of the plaintiff's position.
Because replication practice is deeply entangled with the broader sequence of common law pleading, researchers tracing a historical dispute need to map what plea in bar preceded the precludi non replication — the substance of the defense is what matters strategically, and the formula is only the door through which the response enters.
No meaningful jurisdictional variation applies to this term in its historical context; it was a common law formula of English origin applied with substantial uniformity in courts following common law pleading procedure across England and the American colonies and states before code reform.
Historical Dictionary Support
The three source dictionaries are in full agreement on core meaning. Black's (both editions) and Rapalje & Lawrence converge on the same definition: precludi non names the commencement of a replication to a plea in bar, signaling that the plaintiff contests being barred from maintaining the action. The Black's editions provide the fuller formulaic language drawn from Stephen on Pleading; Rapalje & Lawrence offers the more compressed treatment ("not to be barred") but adds the citation to Chitty's Pleadings, which is the more practically useful reference for period research.
What none of the historical dictionaries address — understandably, given their reference function — is the structural context that gives the formula meaning: the sequence of pleadings in which it operated, what a plea in bar was and how it differed from a plea in abatement, and why the plaintiff's choice to reply (rather than demur) was itself a strategic decision. Researchers working in historical sources will need Stephen on Pleading, Chitty's Pleadings, or Gould's treatise on pleading to reconstruct that context fully.
The historical dictionaries also do not flag the formula's obsolescence, which is worth noting: by the time Black's first edition appeared (1891), code pleading had already swept away common law forms in most American jurisdictions. The entry is preserved as a term of art for historical and common law reference rather than active practice.