discontinuance

after an agreement to refer, a disclosure and hearing before the referees, and an opinion expressed, or intimated, by them, upon the merits, a discontinuance cannot be regarded as a matter of right, and would only be permitted upon very cogent reasons, such, perhaps, as would invalidate the report itself

Of 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. Co. Litt. 325a; 3 Bl. Comm. 171; Adams, Ej. 35-41; Comyn, Dig.; Bac. Abr.; Viner, Abr.; Cruise, Dig. Index; 2 Saund. Index. — ^In Pleading. The chasm or interruption which occurs when no answer is given to some material matter in the preceding pleading, and the opposite party neglects to take advantage of such omission. See Comyn, Dig. "Pleader" (W); Bac. Abr. "Pleas" (P). It is distinguished from insufficient pleading by the fact that the pleading does not profess to answer all the preceding pleading in a case of discontinuance. 1 Wm. Saund. 28, note. ^

In Pleading. The chasm or interruption which occurs when no answer is given to some material matsuch omission. See Com. Dig. Pleader, W.; Bac. Abr. Pleas, P. It is distinguished from insufficient pleading by the fact that the pleading does not profess to answer all the preceding pleading in a case of discontinuance; 1 Wins. Saund. 28, n. It constitutes error, but may be cured after verdict, by 32 Hen. VIII. c. 80, and after judgment by nil (licit, confession, or non sum informatus under 4 Anne, c. 16. See, generally, 1 Saund. 28; 4 Rep. 62 o; Taft v. Transp. Co., 56 N. H. 414. In Practice. The chasm or interruption in proceedings occasioned by the failure of the plaintiff to continue the suit regularly from time to time, as he ought; 3 Bla. Com. 296; Germania Fire Ins. Co. v. Francis, 52 Miss. 467, 24 Am. Rep. 674; Taft v. Transp. Co., 56 N. H. 416. The entry upon record of a discontinuance has the same effect. The plaintiff cannot discontinue after demurrer joined and entered, or after verdict or writ of inquiry, without leave of court; Cro. Jac. 35; 1 Lilly, Abr. 473; 8 C. C. App. 437; but see Lowman v. West, 7 Wash. 407, 35 Pac. 130; although he can notwithstanding the interposition of a counterclaim; Felix v. Vanslooten, 17 N. Y. Sup. 844; and is generally liable for costs when he discontinues, though not in all cases. Leave to discontinue" will be refused when proofs had been taken and closed at large expense to defendant, when no other ground is shown except a desire to relitigate in a new suit the questions involved; American Steel & Wire Co. v. Mayer & Englund Co., 121 Fed. 127. See Hart v. Storey, 1 Johns. (N. Y.) 143; Ludlow v. Hackett, 18 Johns. (N. Y.) 252; Lackey v. Mc Donald, 1 Cai. (N. Y.) 116; Thurman v. James, 48 Mo. 235; Etheridge v. Osborn, 12 Wend. (N. Y.) 402; Com. Dig. Pleader (W 5); Bac. Abr. Plea (5 P).

In practice. The termination of an action, in consequence of the plaintiff's omitting to continue the process or proceedings by proper entries on the record. 3 Bl. Comm. 296; 1 Tidd, Pr. 678; 2 Arch. Pr. K. B. 233. Hadwin v. Railway Co.., 67 S. C. 463, 45 S. E. 1019; Gillespie v. Bailey, 12 W. Va. 70, 29 Am. Rep. 455; Kennedy v. McNickle, 7 Phila. (Pa.) 217; Insurance Co. v. Francis, 52 Miss. 467, 24 Am. Rep. 674. In practice, a discontinuance is a chasm or gap left by neglecting to enter a continuance. By our practice, a neglect to enter a continuance, even in a defaulted action, by no means puts an end to it, and such actions may always be brought forward. Taft v. Northern Transp. Co., 56 N. H. 416. The cessation of the proceedings In an action where the plaintiff voluntarily puts an end -to it, either by giving notice in writing to the defendant before any step has been taken in the action subsequent to the answer, or at any other time by order of the court or a judge. In practice, discontinuance and dismissal import the same thing, viz., that the cause is sent out of court. Thurman v. James, 48 Mo. 235.

In pleading. That technical interruption of the proceedings in an action which follows where a defendant does not answer the whole of the plaintiff's declaration, and the plaintiff omits to take judgment for the part unanswered. Steph. PL 216, 217.

A cessation, intermission, interruption or suspension; the termination of an action by the voluntary act of the plaintiff, usually by entering a Common rule for that purpose; the termination of an action, in consequence of the plaintiff's omitting to continue the process or proceedings by proper entries on the record; the and the plaintiff omits to take judgment for the part unanswered. Discontinuance of an estate; the termination or suspension of an estate tail, by a conveyance by the tenant in tail, of a larger estate in the land than he was by law entitled to; a species of ouster gf the freehold.

The cessation of an action or an estate. 1. (1) A chasm or gap left by neglecting to enter a continuance in an action.^ When a plaintiff fails to follow up his case and leaves a chasm in the proceedings by his laches.' When the plaintiff leaves a chasm in the proceedings, as by not continuing the process, regularly from time to time, the suit is discontinued, and the defendant need not attend. ^ See Continuance: Dismiss. (2) At common law, the act of the plaintiff in demurring or replying to a plea which answered a part of his declaration. By not taking judgment for the part unanswered, he was held not to have followed up his whole demand.* 2. When, at common law, a tenant in tail granted a larger estate than he could rightfully transfer. Abolished in England in 1834; but prior thereto had already become obsolete.!" ' Parker & Whipple Co. v. Tale Lock Co., 123 U. S. 87 (1887), cases. ^ Hailes v. Albany Stove Co., 133 U. S. 682 (1887). » 1 Daniel, Ch. Pr. 706. < Story, Eq. PI. § 383. « Whiley v. Whiley, 93 E. C. L. •663 (1858). »Taft V. Northern Transportation Co., 56 N. H. 418 (1876), Gushing, C. J. ' Roundtree v. Key, 71 Ala.' 215 (1883), Jackson, C. J.; ib. 307. « [3 Bl. Com. 296.

1. The grant by a tenant in tail of a larger estate than he was entitled to, whereby the heir or reversioner was driven to his right of action and could not enter; a species of ouster. 2. Of plea, when all parts of a pleading are not answered. If the plaintiff failed to take judgment by nil dicit for such part as was unanswered, it was a discontinuance of the action. 3. Of process or action, when" the plaintiff failed to take some necessary step for continuing the action. Actions are frequently ended by voluntarily entering a discontinuance and paying costs.

A cessation, intermission, interruption or suspension. Co, Litt, 325 a. Litt, sect. 592. ''An ancient word in the law," and of divers sigmfications. Id. ihid. The omission of a continuance. See infra. DiSCONTINUANCB OP AN EsTATE. The termination or suspension of an estate tail, in consequence of the act of the tenant in tail, in conveying a larger estate in the land than he was by law entitled to do. 2 Bl, Com, 275. 3 /</. i 7 1. An alienation made or suffered by tenant in tail, or by any that is seised in auter droit, whereby the issue in tail, or the heir or successor, or those m reversion or remtunder, are driven to their action, and cannot enter. Co. Litt, 825 a. Mr. Preston calls it " the cesser of a seisin under an estate, and the acquisition of a seisin under a new, and necess^y a wrongful title." Preston on Merger, ch. ii. Discontinuance is mentioned by Blackstone as a species of ouster of the freehold; and its operation formerly was, to take away entirely the right of entry, and put the issue and those in reversion and remainder, to the necessity of bringing a real action. 3 Bl, Com. 167. Termes de la ley. 1 Steph. Com. 431, note. But now, by statute 3 A 4 Will. IV. c. 27, s. 89, no discontinuance shall take away any right of entry. 1 Steph, Com. 522, 523. So that the titie by discontinuance seems to be abolished, in Eng-, lish, as in American law. 3 Id. 485. 2 Crabb's Real Prop. 1064, § 2456. 2 Arch. iVT. Prius, 301. 1 i^. F. Rev. Stat. [726], 720, § 32. DiscoNTiNUANOB. lu practice. The termination of an action at law by the volun< tary act of the plaintiff, and which is tisnally effected bj entering a common rule for that purpose. 1 Tidd*8 Pr. 679. 2 Arch. Pr. 234. This cannot» however, be done without the payment of the defendant's costs, unless bj consent or on a settlement, <fec. Id. ibid. And sometimes, not without leave of the court. Arch, K, Pract, 306. A nonprot (q. Y.) is sometimes termed a discontinuance. The termination of an action, in consequence of the plaintiff's omitting to continue the process or proceedmgs by proper entries on the record. 3 Bl, Uom, 296. I Tidd*8 Pr, 678. 2 Arch, Pr, 283. See Continuance. With the disuse or abolition of continuances this has become obsolete. Arch, N, Pract. 305, 306. Discontinuance.

In pleading. That technical interruption of the proceedings in an action which follows where a defendant does not answer the whole of the plaintiff's declaration, and the plaintiff omits to take judgment for the part unanswered. Steph, PL 216, 217.

of action, in practice, 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. 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. 478. 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’s R. 116; 1 Johns. R. 143; 6 Johns. R. 833; 18 Johns. R. 252; 2 Caines’s R. 380; Com. Dig. Pleader, W 56; Bac. Abr. Pleas, P.