DISCONTINUANCE, pleading. A chasm1 or interruption in the pleading.
2. It is a rule, that every pleading, must be an answer to the whole of what is adversly alleged2. Com. Dig. Pleader, E 1, ri 4; 1 Saund. 28, n. 3; 4 Rep. 62, a. If, therefore, in an action of trespass3 for breaking a close, and cutting three hundred trees, the defendant4 pleads as to cutting all but two hundred trees, some matter of justifica- tion or title, and as to the two hundred trees says nothing, the plaintiff is entitled to sign judgment5, as by nil6 dicit against him, in respect of the two hundred trees, and to demur7, or reply to the plea, as to the remainder of the trespasses8. On the other hand, if he demurs9 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 mere10 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 statute11 of Jeo fails, 32 H. VIII. c. 80; and after judgment by nil dicit, confession12, or non sum informatus, by stat. 4 Ann. c. 16. It is to be observed, that as to the plaintiff's course of proceeding13, there is a distinction between a case like this, where the defendant does not profess14 to answer the whole, and a case where, by the commencement of his plea, he professes15 to do so, but, in fact, gives a defective16 and partial answer, applying to part only. The latter case amounts merely to insufficient17 pleading, and the plaintiff's course, therefore, is not to sign judgment for the part defectively18 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 alienation19 made or suffered by the tenant20 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 ousted21, 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 proceedings22 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 writ23 of inquiry24 without leave of court. Cro. Jac. 35 1, Lilly's Abr. 473; 6 Watts25 & 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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