Definition
A procedural defect in the continuation of a lawsuit, arising either from a failure to follow proper form in obtaining a continuance or from continuing a proceeding by unauthorized or undue process. The effect of a miscontinuance is treated as equivalent to a discontinuance — that is, the suit is considered ended, as if it had never been properly carried forward.
Common Confusion
MISCONTINUANCE vs. DISCONTINUANCE vs. CONTINUANCE: These three terms occupy adjacent procedural territory and are easy to conflate. A continuance is a proper, formally valid postponement or extension of a proceeding. A discontinuance is the abandonment or termination of a suit, whether voluntary or forced. A miscontinuance sits between them: it is an attempted continuance that fails due to improper form or undue process, and its legal consequence collapses it into a discontinuance. The terms are not interchangeable in historical pleading records, though Cowell — followed by both editions of Black's — treats miscontinuance and discontinuance as functionally identical in effect. Bouvier draws a sharper analytical distinction by grounding the defect specifically in the use of undue process, a narrower framing than Black's broader "want of proper form."
Why It Matters in Research
This term appears almost exclusively in older common law pleading contexts and is essentially obsolete in modern American practice. Researchers encountering it will find it in pre-twentieth-century case records, pleading treatises, and historical court filings — rarely if ever in contemporary sources.
The principal research trap is conflation: historical records may use miscontinuance, discontinuance, and abatement loosely or interchangeably. When a historical source characterizes a proceeding as having ended on a miscontinuance, the researcher should investigate whether the court treated it as a true discontinuance (requiring the plaintiff to begin again) or as a correctable procedural defect. The answer turns on jurisdiction and period.
Bouvier's citation to Hawkins's Pleas of the Crown situates miscontinuance in the criminal pleading tradition as well as civil, a dimension that Black's and Burrill's pass over. Researchers working in historical criminal records should note this reach.
The term does not map cleanly onto modern procedural concepts. Federal and state rules of civil and criminal procedure replaced the formal continuance mechanics of common law pleading, eliminating the conditions under which a miscontinuance — as a distinct defect — could arise. Attempting to apply the term to modern proceedings is anachronistic.
Historical Dictionary Support
The historical sources present a narrow, consistent core: miscontinuance is an improper continuance whose defect renders it equivalent to no continuance at all. Black's (both editions) and Burrill track closely, each citing Cowell for the proposition that miscontinuance equals discontinuance in effect. Rapalje & Lawrence offer the briefest entry, noting cessation and intermission alongside the improper continuance meaning, without further elaboration.
Bouvier introduces the most analytically useful framing: the defect lies specifically in continuing suit "by undue process," and the consequence is equivalence to discontinuance. His citations to Hawkins and Jenkins's Century Cases ground the term in actual pleading authority rather than lexicographic tradition, giving Bouvier's entry independent weight for historical research. Webster's 1913 mirrors this dual framing — discontinuance on one hand, continuance by undue process on the other — suggesting the distinction was recognized, if not always rigorously applied, in period usage.
None of the historical sources elaborate on what specifically constituted "undue process" or "want of proper form," leaving those questions to the underlying treatises. Researchers needing operational definitions should consult Hawkins's Pleas of the Crown directly.
Jurisdictional Note
Miscontinuance is a common law pleading term with no established equivalent in modern American civil or criminal procedure. Its significance is jurisdiction-specific only in the historical sense: English common law courts and early American courts applying common law pleading forms are the relevant contexts. Modern jurisdictional variation is not a research concern for this term.