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DISCONTINUANCE

A chasm or interruption in the pleading.

It is a rule that every pleading must be an answer to the whole of what is adversly alleged. 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; however, such error is cured after verdict and judgment by nil dicit, confession, or non sum informatus. 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.

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.

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.

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 may restore it by entry.

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. Also, a discontinuance is an entry upon the record that the plaintiff discontinues his action.

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. The plaintiff is, on discontinuance, generally, but not always, liable for costs.

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