Tarleton v. Wells

The defendant alleges in his plea that he rendered an account and paid overall monies at the times specified in the condition of the obligation ; but in his rejoinder he alleges that after the time specified in the condition df the obligation, he rendered an account and paid over all monies, &c. It is objected by the plaintiff, that the rejoinder is a departure from the plea. A departure in pleading is said to be when a man quits or departs from one defence which he has first made, and has recourse to another ; it is when his second plea does not contain matter pursuant to his first plea, and which does not support and fortify It.(l) The rendering of an account, and the payment of money at the times specified in the condition of the bond, is one thing ; the rendering of an account, and the payment of money after the day specified, is another thing. The matter of the plea is neither supported nor fortified by the matter of the rejoinder. There is, therefore, most unquestionably a departure. A departure in pleading is matter of substance, and the rejoinder must be adjudged insufficient.(2) ,

*309The replication in this case has its defects. It is double, and concludes with a verification, when it ought to have con-eluded to the country. But these are defects in form only, and are cured by the rejoinder. 1 Chitt. PI. 647, 540.

Judgment for the Plaintiff.