DISCONTINUANCE 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 suc cessor, or those in reversion or remainder, are driven to their action, and cannot enter.
The term discontinuance is used to distin guish 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. Coke, Litt. 325 a; 3 Blackstone, Comm. 171 ; Adams, Ej. 35-41; Comyns, Dig. ; Bacon, Abr.; Viner, Abr. ; Cruise, Dig. In dex; 2 Saund. Index.
In Pleading. The chasm or interruption which occurs when no answer is given to some material matter in the preceding plead ing, and the opposite party neglects to take advantage of such omission. Sec Cornyns, Dig. Pleader, W ; Bacon, 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 Wms. Saund. 28, n.
It constitutes error, but may be cured after verdict, by stat. 32 Hen. VIII. c. 80, and after judgment by nil dicit, confession, or non sum informatus, under stat. 4 Anne, c. 16. See, generally, 1 Saund. 28 ; 4 Rep. 62 a.
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 Blackst. Comm. 296. The entry upon record of a dis continuance has the same effect. The plain tiff cannot discontinue after demurrer joined and entered, or after verdict or writ of in quiry, without leave of court, Croke Jae, 35 ; 1 Lilly, Abr. 473 ; 6 Watts & S. Penn. 147 • and is generally liable for costs when he discontinues, though not in all cases. See 1 Johns. N. Y. 143 ; 3 id. 249 ; 6 id. 333 ; 18 id. 252 • 1 Caines, N. Y. 116. 2 id. 380; Co myns, Dig. Pleader (W 5) ; Bacon, Abr. Plea (5 P).