Legal Term: DEPARTURE

Definition: pleading. Said to be when a party quits or departs from the case, or defence, which he has first made, and has recourse to another, it is when his replication or rejoinder contains matter not pursuant to the declaration, or plea, and which does not support and fortify it. Co. Litt. 304, a, 2 Saund. 84, a, n. (1), 2 Wils. 98, 1 Chit. Pl. 619. The following example will illustrate what is a departure: if to assumpsit, the defendant plead infancy, and to a replication of necessaries, rejoin, duress, payment, release, &c., the rejoinder is a departure , and a good cause of demurrer, because the defendant quits or departs from the case or defence which he first made, though either of these matters, newly pleaded, would have been a good bar, if first pleaded as such. 2. A departure in pleading is never allowed, for the record would, by such means, be spun out into endless prolixity, for he who has departed from and relinquished his first plea, might resort to a second, third, fourth, or even fortieth defence, pleading would, by such means, become infinite. He who had a bad cause, would never be brought to issue, and he who had a good one, would never obtain the end of his suit. Summary on Pleading, 92, 2 Saund. 84, a. n. (l), 16 East, R. 39, 1 M. & S. 395 Coin. Dig. Pleader, F 7, 11, Bac. Abr. Pleas, L, Vin. Abr. Departure, 1 Archb. Civ. Pl. 247, 253, 1 Chit. Pl. 618. 3. A departure is cured by a verdict in favor of him who makes it, if the matter pleaded by way of departure is a sufficient answer, in substance, to what is before pleaded by the opposite party, that is, if it would have been sufficient, if pleaded in the first instance. 2 Saund. 84 1 Lill. Ab. 444.

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