Definition
Discontinuance has three distinct legal meanings across practice, pleading, property, and maritime contexts.
1. Voluntary termination of an action (procedure). The plaintiff's act of ending a pending lawsuit before final judgment, either by filing written notice before the defendant has taken any step subsequent to the answer, or at any later point by order of the court. The effect is to remove the case from the court's active docket. In modern federal and most state practice, this concept is largely governed by rules on voluntary dismissal, and discontinuance and dismissal are often used interchangeably.
2. Gap in pleading (common-law pleading). In the technical law of common-law pleading, a discontinuance occurred when a party's pleading failed to respond to some material matter raised in the preceding pleading, leaving an unanswered gap in the record. Distinguished from a mere insufficiency of pleading: an insufficient plea attempts to answer but answers poorly; a discontinuance makes no attempt at all as to the omitted matter.
3. Break in an estate (real property). Historically, a discontinuance of estate arose when a tenant seised in right of another — most typically a husband holding land jure uxoris (in right of his wife), an ecclesiastic holding jure ecclesiae, or a tenant in tail — wrongfully alienated the land. The effect was to deprive the party with the superior right of their right of entry, forcing them to bring a real action rather than simply re-entering the property. This doctrine was a creature of feudal real property law and is effectively obsolete in modern practice.
4. Unlading of cargo (maritime). An older and narrower use: the unloading or unlivery of a cargo from a vessel. Largely a historical usage.
Common Language
Modern common usage (Wiktionary): "The occurrence of something being discontinued; a cessation; an incomplete ending."
Historical common usage (Webster's 1913): "The act of discontinuing, or the state of being discontinued; want of continued connection or continuity; breaking off; cessation; interruption." Webster's also notes the property-law sense of a break in an estate caused by wrongful alienation.
The common meaning captures only the general idea of stopping or breaking off. The legal meanings carry specific procedural consequences — loss of a right of entry, a gap that voids a pleading record, or formal termination of litigation — that ordinary usage of "discontinuance" does not convey. A researcher encountering the term in a historical legal document cannot assume the general meaning; context and the branch of law must determine which technical sense applies.
Common Confusion
Discontinuance vs. nonsuit vs. dismissal: These three terms are frequently conflated in both historical and modern sources. In common-law practice, they were technically distinct. A nonsuit was entered against a plaintiff who failed to appear or prosecute; a discontinuance was the plaintiff's own voluntary act of abandonment; a dismissal was more often a court-initiated termination. Many modern procedural codes (including the Federal Rules of Civil Procedure) collapse these into voluntary and involuntary dismissal, which means older authorities using these terms cannot be read through a modern lens without checking the procedural regime in force at the time.
Discontinuance of estate vs. disseisin: Both involve a wrongful deprivation of a property right, but they differ in mechanism and remedy. Disseisin was a wrongful ouster or dispossession by a stranger; discontinuance of estate arose specifically from the wrongful alienation by the very person holding the estate. The distinction affected which real action the dispossessed party could bring.
Why It Matters in Research
The term is a research trap precisely because it does the work of at least four different doctrines depending on era and context. A researcher moving through nineteenth-century case law will encounter the term in pleading opinions (the gap-in-record sense), in equity and common-law procedure opinions (the voluntary-termination sense), in real property cases involving estates tail or coverture (the alienation-break sense), and occasionally in admiralty records (the unlading sense). Misreading the pleading sense as the procedural sense, or vice versa, produces fundamentally wrong conclusions about what happened in a case.
The transition from common-law pleading to code pleading (beginning with the Field Code of 1848 and accelerating through the late nineteenth century) is especially important here. The technical pleading sense of discontinuance — the unanswered-matter gap — largely disappears from case law after code pleading systems are adopted in a given jurisdiction, while the procedural termination sense survives but gets renamed or restructured under rules of voluntary dismissal. Dating the applicable procedural regime in the jurisdiction under study is essential before interpreting any historical use of this term.
The real property sense (discontinuance of estate) is almost entirely confined to pre-twentieth-century authority and to jurisdictions that retained common-law estates doctrines. It connects directly to the doctrines of coverture, estates tail, and the old real actions (formedon, etc.). Researchers working in colonial American land records or English chancery materials will encounter it; researchers in modern property disputes almost certainly will not.
Historical Dictionary Support
The historical dictionaries agree on the core structure of the term while diverging in emphasis and completeness.
Burrill offers the most useful synthesis, acknowledging discontinuance as "an ancient word in the law, and of divers significations" and correctly distinguishing the pleading sense, the procedural-termination sense, and the estate sense. His treatment of the omission-of-continuance root — the idea that a discontinuance in early practice literally meant a failure to enter a continuance on the court record, leaving a gap — is a detail the other dictionaries understate. This historical root explains why the pleading and procedural senses share the same term: both involve a rupture or gap in what should be a continuous thread.
Black's (1st Ed.) treats the procedural and maritime senses fully and cites Story's admiralty opinion for the unlading meaning. The observation that "discontinuance and dismissal import the same thing" in practice reflects the convergence already underway in late-nineteenth-century American courts.
Bouvier focuses on the pleading sense and is precise about its technical distinction from insufficient pleading — a nuance that Black's and Anderson's handle less carefully. Rapalje & Lawrence provides the clearest treatment of the real property discontinuance-of-estate doctrine, including its specific application to tenants in tail and husbands seised jure uxoris.
What the historical dictionaries collectively understate: the degree to which code pleading and, later, the Federal Rules effectively rendered at least two of these senses (the omission-of-continuance pleading sense and the estate sense) functionally obsolete in American practice. Researchers relying on these dictionaries without attention to procedural history may overestimate the currency of these doctrines.
Jurisdictional Note
The procedural termination sense survives in modern practice but is governed by rule rather than common-law doctrine — Federal Rule of Civil Procedure 41 in federal courts, with state analogs varying in the conditions they attach to voluntary dismissal without prejudice. The real property discontinuance-of-estate doctrine retains no practical significance in any American jurisdiction but may appear in historical title chains and colonial-era conveyancing records. English legal materials will use "discontinuance" in the procedural sense more consistently with the common-law tradition than American materials post-Field Code.
Encyclopedia Cross-Reference
See Law Mind Encyclopedia: Civil Procedure — Voluntary Dismissal; Common-Law Pleading; Estates in Land and the Feudal Tenure System.