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Bouvier's Law Dictionary, Revised 6th Edition (1856)

DISCONTINUANCE, pleading. A chasm or interruption in the pleading.
2. It is a rule, that every pleading, must be an answer to the whole of
what is adversely alleged. Com. Dig. Pleader, E 1, ri 4; 1 Saund. 28, n. 3; 4

Rep. 62, a. If, therefore, in an action of trespass for breaking a close,
and cutting three hundred trees, the defendant pleads as to cutting all but
two hundred trees, some matter of justification or title, and as to the
two hundred trees says nothing, the plaintiff is entitled to sign judgment,
as by nil dicit against him, in respect of the two hundred trees, and to
demur, or reply to the plea, as to the remainder of the trespasses. On the
other hand, if he demurs or replies to the plea, without signing, judgment
for the part not answered, the whole action is said to be discontinued. For
the plea, if taken by the plaintiff as an answer to the, whole action, it
being, in fact, a partial answer only, is, in contemplation of law, a mere
nullity, and a discontinuance takes place. And such discontinuance will
amount to error on the record; such error is cured, however, after verdict,
by the statute of Jeo fails, 32 H. VIII. c. 80; and after judgment by nil
dicit, confession, or non sum informatus, by stat. 4 Ann. c. 16. It is to be
observed, that as to the plaintiff's course of proceeding, there is a
distinction between a case like this, where the defendant does not profess
to answer the whole, and a case where, by the commencement of his plea, he
professes to do so, but, in fact, gives a defective and partial answer,
applying to part only. The latter case amounts merely to insufficient
pleading, and the plaintiff's course, therefore, is not to sign judgment for
the part defectively answered, but to demur to the whole plea. 1 Saund. 28,
n.
3. It is to be observed, also, that where the part of pleading to which
no answer is given, is immaterial, or such as requires no separate or
specific answer for example, if it be mere matter of allegation, the rule
does not in that case apply. Id. See Com. Dig. Pleader, W; Bac. Abr. Pleas,
P.


DISCONTINUANCE, estates. An alienation made or suffered by the tenant in
tail, or other tenant seised in autre droit, by which the issue in, tail, or
heir or successor, or those in reversion or remainder, are driven to their
action, and cannot enter.
2. The term discontinuance is used to distinguish those cases where the
party whose freehold is ousted, can restore it only by action, from those in
which he ma restore it by entry. Co. Litt. 325 a 3 Bl. Com. 171; Ad. Ej. 35
to 41; Com. Dig. h.t.; Bac. Ab. h.t.; Vin. Ab. h.t.; Cruise's Dig. Index,
b.. t..5 2 Saund. Index, h.t.


DISCONTINUANCE, practice. This takes place when a plaintiff leaves a chasm
in the proceedings of his cause, as by not continuing the process regularly
from day to day, and time to time, as he ought. 3 Bl. Com. 296. See
Continuance. A discontinuance, also, is an entry upon the record that the
plaintiff discontinues his action.
2. The plaintiff cannot discontinue his action after a demurrer joined
and entered, or after a verdict or a writ of inquiry without leave of court.
Cro. Jac. 35 1, Lilly's Abr. 473; 6 Watts & Serg. 1417. The plaintiff is,
on discontinuance, generally liable for costs. But in some cases, he is not
so liable. See 3 Johns. R. 249; 1 Caines' R. 116; 1 Johns. R. 143; 6 Johns.
R. 333; 18 Johns. R. 252; 2 Caines' Rep. 380; Com. Dig. Pleader, W 5; Bac.
Abr. Pleas' P.

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