DEPARTURE. In Maritime Law. A devi ation from the course prescribed in the policy of insurance. See DEVIATION.
In Pleading. The statement of matter in a replication, rejoinder, or subsequent plead ing, as a cause of action or defence, which is not pursuant to the previous pleading of the same party, and which does not support and fortify it. 2 Wms. Saund. 84 a, n. 1 ; Co. Litt. 304 a. It is not allowable, as it pre vents reaching an issue ; Kimberlin v. Car ter, 49 Ind. 111; White v. Joy, 13 N. Y. 83, 89 ; 2 Wins. Saund. a, n. 1; Steph. Pl. 410.
A replication in tort following a declara tion in contract is a departure ; 1 B. & S 836 ; and so it is when evidence of an eu tirely different character is required to sup port the declaration and the reply ; John son v. Bank, 59 Kan. 250, 52 Pac. 860. The change of an immaterial point is no depart ure; 1 Stra. 21; nor is it if one of the later pleadings merely fortifies the former ; 1 Lev. 81; nor where the replication merely an swers a prima facie defence set up by the • plea, as a statute against a claim of common law right ; 2 B. & S. 402 ; nor the allegation in reply of new matter necessary to meet the allegations of the answer, if not contradicto ry to the facts stated in the original plead ing; Hunter Milling Co. v. Allen, 74 Kan.
679, 88' Pac. 252, 8 L. R. A. (N. S.) 291; Mc Lachlin v. Barker, 64 Mo. App. 511; Mayes v. Stephens, 38 Or. 512, 63 Pac. 760, 64 Pac. 319 ; McFadden v. Schroeder, 4 Ind. App. 305, 29 N. E. 491, 30 N. E. 711; nor the set ting out of previous averments in greater detail; Zorn v. Livesley, 44 Or. 501, 75 Pac. 1057.
It is to be taken advantage of by demurrer, general; 5 D. & R. 295 ; Sterns v. Patterson, 14 Johns. (N. Y.) 132 ; Keay v. Goodwin, 16 Mass. 1; or special; 2 Saund. 84 ; Com. Dig. Pleader (F 10); . Hanover Fire Ins. Co. of City of New York v. Brown, 77 Md. 64, 25 Atl. 989, 27 Atl. 314, 39 Am. St. Rep. 386.
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 has been before pleaded by the opposite party ; that is, if it would have been sufficient if pleaded in the first instance ; 2 Saund. 84 ; 1 Lilly, Abr. 444.