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DEPARTURE, 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.
DEPARTURE, maritime law. A deviation from the course of the voyage insured. 2. A departure is justifiable or not justifiable it is justifiable ill consequence of the stress of weather, to make necessary repairs, to succor a ship in distress, to avoid capture, of inability to navigate the ship, mutiny of the crew, or other compulsion. 1 Bouv. Inst. n. 1189.