Pollard v. Taylor
| Decision Date | 01 January 1810 |
| Citation | 5 Ky. 234 |
| Parties | Pollard <I>vs.</I> Taylor. |
| Court | Kentucky Court of Appeals |
THIS was an action of covenant, upon an agreement to pay 151 2-3 dollars to the plaintiff, upon his delivery to the defendant an order for that sum, which the defendant had drawn in favor of the plaintiff, upon John Mason. The plaintiff avers in his declaration, that he did, on the ____ day of ____, in the year 1809, deliver to the defendant the order, and assigns the breach of the covenant in the non-payment of the money. The defendant pleaded covenants performed, upon which issue was joined, and also that the plaintiff did not before the suing out the original writ in the case, deliver to the defendant the order drawn upon John Mason, as in the declaration is set forth. To this plea the plaintiff replied, that he did, before the institution of this suit, cause to be tendered by the hands of John Newland, the order aforesaid to the defendant, who then and there refused to receive the same. To this replication the defendant demurred generally. The demurrer was overruled, and the jury having found the issue upon the plea of covenants performed for the plaintiff, judgment was given for the damages assessed by the jury: from which judgment the defendant has appealed to this court.
It is assigned for error, that the replication of the plaintiff to the defendant's second plea was a departure from his declaration, and that the court erred in overruling the demurrer thereto.
A departure in pleading is said to be, when a man quits or departs from one case or defence he has made and has recourse to another, or when his second does not contain matter pursuant to his first and support and fortify it — Co. Lit. 304. One reason why a departure is never allowed, is, because it tends to produce an endless prolixity in pleading; for if a man might relinquish the first ground he had taken, and have recourse to a second, he might abandon his second and resort to a third, and so on in a continual progression as long as his imagination would supply him with new matter to which he could resort. Thus the pleadings would become infinite, and he who had a bad cause would never be brought to issue, while he who had a good one would never obtain the end of his suit.
That the plaintiff's replication in this case is a departure from his declaration cannot be doubted. In his declaration he insists on a delivery of the order to the defendant, and when the defendant tenders an issue upon that point he shifts his ground and replies that he had offered to deliver the order, but the defendant refused to...
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