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285. Departures were of Two hinds, being either in Point of Fact, or in Point of Law. The earliest Stage of Pleading at which a plaintiff may Depart is in the Replication; the earliest Stage of Pleading at which a defend­ant may Depart is in the Rejoinder.
Departure in the Replication

THE Replication is the earliest Stage of Pleading at which the plaintiff may be guilty of the Fault of Departure. And such a De­parture may be in Point of Fact or in Point of Law.

(I) In Point of F’act.—Thus, for ex­ample, where, ha Special Assumpsit, the plaintiffs, as Executors, declared on several Promises alleged to have been made to the testator in his lifetime, the defendant Plead­ed that she did not Promise within six years before the obtaining of the Original Writ of the plaintiffs, to which the plaintiffs Replied

35. Lee v. Rogers, 1 Let 110, 83 Eng.Rep. 322 (1663);

Cole,. Hawkins, 10 Mod. 348,88 Eng,1te~ti759 (1717).

that, within six years before the obtaining of the Original Writ, the Letters Testamentary were granted to them, whereby the action accrued to them, the said plaintiffs, within six years, the Court held that there was a Departure, as in the Declaration they had laid Promises to the Testator, whercas in the Replication they had alleged a Right of Action as accruing to themselves as Ex­ecutors.36 If they meant to put their action on this ground, in the Declaration they ought to have laid Promises to themselves, as Ex­ecutors.

(II) In Point of Law.—Thus, for example, in Mole v. Wallis,3where the plaintiff de­clared in Covenant on an Indenture of Ap­prenticeship, by which the defendant was to serve him for seven years, and Assigned, as Breach of Covenant, that the defendant left his service within the seven years, the de­fendant Pleaded Infancy, to which the plain­tiff Replied that, by the Custom of London, infants may bind themselves as apprentices, the Court held there was a Departure in Point of Law between the Declaration and the Replication, as that which is Pleaded Generally as the Common Law cannot be maintained by a Custom.

Departure in the Rejoinder

TIlE Rejoinder is the earliest Stage of Pleading at which the defendant may be guilty of the Fault of Departure, and it occurs more frequently at this point than in the Replication. And such a Departure may be in Point of Fact or in Point of Law,

(I) In Point of Fact.—Thus, for example, in Debt on a Bond conditioned to perform an Award, so that the same was delivered to the defendant by a certain time, the de­fendant Pleaded that the Arbitrators did not make any Award, to which the plaintiff re­plied that the Arbitrators did make an Award to such an effect, and that the same was
~ Hickman v. Walker, Willes 27, i25 Eng.Bep. 1037 (1737).

Tendered by the proper time, to which Repli­cation the defendant Rejoined that the Award was not so Tendered, to which Rejoinder the plaintiff Demurred on the ground that the Rejoinder was a Departure from the Plea in Bar. In sustaining the plaintiff’s Demurrer, the Court relied on the fact that in the defendant’s Original Plea in Bar, he had said that the Arbitrators made no Award, whereas, in his Rejoinder, he implicitly con­fessed that the Arbitrator had made an Award, but says that it was not Tendered according to the condition of the bond. This, in the view of the Court, was a clear Depar­ture, for it is one thing not to make an Award and another thing not to Tender it when made. And although these things were nec­essary, by the condition of the bond, to bind the defendant to perform the Award, yet the defendant should have relied only upon one or the other by itself.39

And so where the plaintiffs declared in Debt on a Bond conditioned to keep the plain­tiffs harmless and indemnified from all suits of one Cook, the defendants Pleaded that they had kept the plaintiffs harmless, to which the plaintiffs Replied that Cook had sued them, so that the defendants had not kept them harmless, to which the defend­ants Rejoined that they had not had any notice of the Damnification. The Court held first, that the Matter of the Rejoinder was bad, as the plaintiffs were not legally bound to give notice; and second, that the Rejoin­der was a Departure from the Plea in Bar, as in the Plea in Bar the defendants Pleaded that they had saved harmless the plaintiffs, whereas in the Rejoinder they confessed that they had not saved the plaintiffs harmless, and said that they had not had Notice of the Damnification; which was a plain De­parture?°
SS- itoberts v. Marlett, 2 Saund. 168, S~ Eng.Rep. 954 (1670).


37- 1 Lev. 81, 83 Eng.Rep. 307 (1662).

39. Cutler v. Southern, I Saund. 116, 85 Eng.Itep. 125





And where, in Debt on a Bond conditioned to perform the covenants in an indenture of lease, one of which was that the lessee, at every felling of wood, would make a fence, the defendant Pleaded that he had not felled any wood, to which the plaintiff Replied that he felled two acres of wood, but make no fence, to which the defendant Rejoined that he did make a fence, the Court held there was a Departure.4°
(II) In Point of Law.—The cases dis­cussed above were cases in which the de­fendant, at the Rejoinder Stage of Pleading, deserted the ground, in Point of Fact, that he had first taken in his Plea. It is, however, also a Departure, where he puts the Same Facts on a new ground in Point of Law, as where he relies on the effect of the Common Law in his Plea, and on a Statute in his Re­joinder.
Thus, where, in Trespass, the defendant made Title to the premises, Pleading a demise for fifty years made by a certain college, to which the plaintiff Replied that there was another lease of the same premises, which had been assigned to the defendant, and which was unexpired at the time of the mak­ing of the said lease for fifty years, and alleged a proviso in the Act of 31 Hen. VIII, c. 13, 4 Statutes at Large 455 (1539), avoid­ing all leases, by the colleges to which that Act related, made under such circumstances as the lease last mentioned, to which the defendant, by way of Rejoinder, Pleaded an­other Proviso in the Statute, which allowed such leases to be good for twenty-one years, if made to the same person, and that by virtue thereof, the devise stated in his Plea was available for twenty-one years at least, the Judges held the Rejoinder to be a IDe-
40. Vernon v. Gatacre, 3 Dyer, 253a, 73 Eng.Eep. 501 (1566).
A party to a Suit, In the coarsc of litigation, cannot assert and maintain radically inconsistent positions. Lindsey v. Mitchell & McCauley, 174 NC. 458, 93 8. E. 955 (1917).

parture from the Plea; “for in the Bar Pleads a lease for 50 years, and in the F joinder he concludes upon a lease for years.” And they observed that “the ci fendant might have shown the statute a’ the whole matter at first.” 41

286. The Method of Taking Advantage

the Fault of Departure is by a General Th murrer; it involves, however, an Exception I the General Rule that a violation of a Rule Pleading constitutes a Defect in Form.

AT Common Law any violation of a Rul of Pleading was said to create a Defect ii Form; any violation of a Rule of Substantivi Law a Defect in Substance. As a Departun involved a violation of the Rule of PIeadin~ that there must be No Departure, it would appear, on analysis, that such a Fault con­stituted a Defect in Form and should, there­fore, have been available on Special De­murrer. But this was not the Law; the Rule was that the Mode of taking Advantage of a Departure was by General Demurrer,42 the Fault being an Active Abandonment of the ground on which the plaintiff had placed his Cause of Action or the defendant his Defense, and hence it was treated as a Fault in Substance.43 A Verdict in favor of him who makes the Departure will cure the Fault, however, if the Matter Pleaded by way of Departure is a sufficient Answer, in Sub­stance, to what is before Pleaded by the adverse party; that is, if it would have been
41, Pulrnerston v, Steward, Flow. 102, 73 Engitep­160 (1554).
42. The availability of the Fault of Departure on a

General Demurrer, results from the fact that the

Defect of Departure is one of the Five Exceptions to

the General Rule that a Violation of a Rule ot

Pleading constitutes a Defect in Form.
43~ Massachusetts: Iteay cc Goodwin, 16 Mass. 1

(1819); New Hampshire: Tarleton v. Wells, 2 N.H.

306 (1520); New York: Sterns i- Patterson, 14

Johns. (N.Y.) 132 (1817); Andrus v. Waring, 211

Johns. (N.Y.) 160 (1822).

sufficient provided he had Pleaded it in the first instance.44



287. In general, under Modern Codes and

Practice Acts, the Common-Law Doctrine as to Departure still prevails.

THE rule as to Departure under Modern Codes and Practice Acts is generally the same as at Common Law, that is, that the plaintiff in his Replication, and the defendant in his Rejoinder, may not Depart from the Cause of Action set forth in the Declaration or the Defense set forth in the Plea.4~
Under the Federal Rules of Civil Procedure, where there is no counterclaim or cross claim in the Answer, a Reply is permitted under Rule 7(a) only upon order of the Court. It has been contended that a rigid enforcement of the Rule against Departure would be In­consistent with the Spirit of the Federal Rules, particularly as it is said that the Plead­ings are no longer of the same importance in the Formulation of Issues, the Pre-Trial Conference and Discovery having presuma­bly taken over much of this task.
288. A New Assignment is a restatement in the Replication of the plaintiff’s Cause of Ac­tion. Where the Declaration in an Action is ambiguous and the defendant Pleads Facts which literally are an Answer to it, but not to the Real Claim set up by the plaintiff, the plaintiff’s course is to Reply by Way of New Assignment, that is, to allege that he brought his Action, not for the cause supposed by the
4~. English: Lee v. Raynes, T.Raym. 86, 83 Eng.Itep.

47 (1063); Richards v. Hodges, 2 Saund. 844, 85

Eng.Rep. 751 (1669); Rhode Island: Burdiek v.

ICenyon, 20 RI. 498, 40 A. 99 (1898).

5. Minnesota: Finn v. Modern Brotherhood, 118

Minn. 307, 136 N.W. 850 (1912); New York: Young

V. Dresser, 137 App.Div. 313, 122 N.Y.S. 29 (1910);

Washington: Perlus V. Market Investment Co., 95

Wash. 484, 164 P. 65 (1917).

defendant, but for some Other Cause, to which the Plea had no application,

THE necessity for this Form of Procedural Device arose from the very General Mode of Statement sometimes permitted in the Declaration, as in Trespass to land. This made it possible for the defendant to Plead an evasive Plea, which, in turn, rendered it necessary for the plaintiff in his Replication to restate the Cause of Action intended, with greater precision and particularity.46
Thus, for example, in an action of Tres­pass for Assault and Battery, a case may occur in which the plaintiff has been twice assaulted by the defendant; and one of these assaults may have been Justifiable, being committed in Self-Defense, while the other may have been committed without Legal Excuse. Supposing the plaintiff to bring his action for the latter, it will be found, by referring to the Form of Declaration for Assault and Battery, that the statement is so General as not to indicate to which of the two assaults the plaintiff means to refer.41 The defendant may therefore suppose, or af­fect to suppose, that the first is the assault intended, and will Plead Son Assault Dc­mesne. This Plea the plaintiff cannot safely Traverse, because, as an Assault was in fact committed by the defendant, under the circumstances of Excuse here alleged, the defendant would have a Right, under the Issue Joined upon such Traverse, to prove those circumstances, and to presume that such Assault, and no other, is the Cause of Action. And it is evidently reasonable that he should have this Right; for if the plaintiff were, at the Trial of the Issue, to be allowed to set up a different Assault, the defendant might suffer, by a mistake
46. Bacon, Abridgment, “Trespass,” I, 4 (Philadel­phia, 1846).
47. Stephen, A Treatise on the Principles of Pleading in Civil Actions, C. H, Of the Principal Rules of Pleading, 222 (3rd Am. ed. by Tyler, Washington, D.C., 1875).




Ch. 23

into which he had been led by the Generality of the Plaintiff’s Declaration. The plaintiff, therefore, in the case supposed, not being able to safely Traverse, and having no ground either for Demurrer or for Plead­ing in Confession and Avoidance, has no course, but by a New Pleading to correct the mistake occasioned by the Generality of the Declaration, and to declare that he brought his action, not for the first, but for the second, assault; and this is called “New Assignment”. The mistake being thus set right by the New Assignment, it remains for the defendant to plead such Matter as he may have in Answer to the Assault last mentioned, the first being now out of the question.45 There are other situations where similar considerations make necessary a New Assignment of the plaintiff’s Real Cause of Action, which was left uncertain by reason of having been Generally Alleged in the Declaration.

289. A New Assignment appears in the Rep­lication; it is not, however, a true Replication, as it does not attempt, by either Pleading by Way of Traverse or in Confession and Avoid­ance, to meet the Defendant’s Plea.
THE Form of the Replication which ap­pears below is a New Assignment in a case where the defendant, in Trespass for Assault and Battery, has Pleaded in Confession and Avoidance of Trespasses other than those intended to be declared upon by the plaintiff:
AND as to the said Plea of the said CD. by him secondly above pleaded, as to the said several trespasses in the introductory part of that Plea mentioned and therein attempted to be justified, the said LB. says that, by reason of anything in that Plea alleged, he ought not to be barred from having and maintaining his aforesaid action thereof

against the said C.D., because he says that he brought his said action, not for the Tres­passes in the said second Plea acknowledged to have been done, but for that the said CD. heretofore, to wit, on the day of _______ AD. 19_, with force and arms, at

aforesaid, in the county aforesaid, upon another and different occasion, and for another and different purpose, than in the said second Plea mentioned, made another and different assault upon the said AR than the assault in the said second Plea mentioned, and then and there beat, wounded, and ill-treated him, in manner and form as the said A,B, bath above thereof complained; which said trespasses, above Newly Assigned, are other and different trespasses than the said trespasses in the said second Plea acknowl­edged to have been done. And this the said A.B. is ready to verify. Wherefore, inas­much as the said C.D, hath not answered the said trespasses above Newly Assigned, he, the said A.R, Prays Judgment and his Damages by him sustained by reason of the committing thereof to be adjudged to him, etc.
290. It has been said that a New Assign­nient is in the Nature of a New Declaration, meaning that it is not a true Replication, as it does not profess to Reply to anything in the defendant’s Plea; rather it seeks to state afresh, and with greater detail, the circum­stances of the plaintiff’s case originally Gen­erally Laid in the Declaration.
A NEW ASSIGNMENT is said to be in the Nature of a New Declaration, although in reality it was a Form of Common-Law Amendment, which contrary to the Ordinary Amendment could be exercised as a Matter of Right rather than in the Discretion of the Court. It may, however, more properly be considered as a repetition of the Declara­tion, differing only in this: that it distill­guishes the true ground of complaint as being

4~. Id. at 222, 223.

Sec. 291



different from that which is covered by the Plea. Being in the Nature of a New and Repeated Declaration, it is consequently to be framed with as much certainty or specifi­cation of circumstances as the Declaration itself. In some cases, indeed, it should be even more particular, so as to avoid the necessity of another New Assignment. Thus, if the plaintiff declares in Trespass Quare Clausum Fregit without naming the close, and the defendant pleads the Common Bar— a Plea of Libe rum Tenementum—, which obliges the plaintiff to New-Assign, he must, in his New Assignment, either give his close its name, or otherwise sufficiently describe it, even though such name or description was not required in the Declaration .~


291. The need for New Assignment under the Codes is minimized by virtue of the more complete statement of the claim in the Com­plaint and the liberal rules with respect to ~amendment, but its use has been permitted under some Codes.
SINCE the facts are fully set forth in plaintiff’s Complaint under the Codes, there
49. .Soe 1 Cliittv, On Pleading. e~ VIII, Of Replica­dons, 628 (14th Am. ed. by Perkins, Springfield,

is considerably less need for New Assignment than there was at Common Law.

However, in some Code States, the plaintiff is permitted to interpose a reply in the nature of New Assignment, where this becomes nec­essary in order to show that the plaintiff’s action is grounded on matter other than that to which the Answer speaks.5° But the need for the use of such procedure is minimized by the fact that the same result can be ac­complished by amendment of the Com­plaint.5
Clark points out that the simplified plead­ing of the Federal Rules gives little or no occasion for the use of New Assigiinient, and concludes that it does not appear to be a matter of great importance in modern pro­cedure, perhaps hardly justifying attempts which have been made to limit, if not pro­hibit, anything savoring of New Assign­ment.52
5°. Bishop v. Travis, 51 Minn. 183, 53 NW. 461 (1892); Campbell v. Bannister, 79 Ky. 205 (1580).
31’ Puget Sound Iron Co. v. Worthington, 2 Wash.T.

472, 7 Par. 880 (1855); Stewart v. \Vallis, 30 B:rrl,.

344 (NY.1855).
5~. Clark, Handbook of the Law of Code Pleading, c.

11, The Reply, § 111, New Assignment, 700 (St. Poul

1047), making reference to American Judicature Society model rule, Am,Jud,Soc.Bull. 14, 1919, Art. 15, 13: ‘No pleading after answer shall state any ground of claim or defense not included in a previons pleading of die some pofly.”





292. Production of Issue.

293. Tender of Issue.

294. Joinder of Issue.

292. An Issue in Pleading is a Specific proposition or point of controversy, Affirmed on the O-~.te Side and Denied on the Other. The reduction of the controversy to Issues is the great Object of Pleading.
WE have already seen that the defendant, in opposing the Allegations of the Declara­tion, must either Demur or Plead, and that, in the course of the Pleadings, they must finally reach a point where there is some question or point presented, Affirmed on One Side and Denied on the Other. The reduc­tion of the controversy to some specific ques­tion is the Object of all Pleading, and when reached, it is called the “Issue”; and the Cause, when at Issue, is ready for Trial or for the decision of the Issue raised. A De­murrer, either by the defendant to the Decla­ration or Other Pleading of the plaintiff, or by the plaintiff to a Plea or Other Pleading of the defendant, being a Denial of the legal sufficiency of the Opposing Pleading, raises at once a Question of Law which it is always the peculiar Province of the Court to deter­mine, without the aid of a Jury. This ques­tion must be decided before further proceed­ings are had, and it is therefore said that the Demurrer always Tenders an Issue in Law. Again, if the Declaration or Other Pleading is sufficient on its face, and no Demurrer is interposed, the Pleadings, whether of the de­fendant or the plaintiff, stating Matters of Fact, must at length reach a point where the

Opposing Party will simply Traverse or Deny what is alleged, and this Traverse must al­ways Tender an Issue, which is One of Fact, and which the formal words of the Traverse refer to a Trial by Jury, by concluding “to the Country.”

The decision on an Issue of Law may not necessarily end the Pleadings, except for the time being, since if the Demurrer be over­ruled, the Party offering it is now generally allowed to Plead Over, as it is termed—that is, to offer the Pleading he would have made if he had considered the Pleading Demurred to sufficient; but the Tender and Acceptance of an Issue of Fact closes all Pleading in the Action, as there is then nothing left but a Trial, which must dispose of the Action on its Merits.
293. Upon a traverse, Issue must be Ten­dered- AU Pleadings which Form the Issue by an Affirmative and Negative must Conclude to the Conntry But where New Matter is introduced, the Pleading should always Con­clude with a Verification.
WE have before seen that it is the Object of All Pleadings to bring the Parties, in the course of their mutual altercations, to an Issue that is a single entire point, Affirmed on the One Side and Denied on the Other; and it is to effect this Object that the above Rule was established. There can be no ar­rival at this point until one or the other


See. 293



of the Parties, by the Conclusion of his Pleading, offers an Issue for the acceptance of his opponent, and this offer is called the “Tender of Issue.” The Formulae of Tender­ing the Issue vary according to the Mode of Trial proposed. Upon a disputed Question of Fact the Issue is Tendered by a Conclusion to the Country—referring the question to a Trial by a Jury—usually in the following form: “And this the said A.B. Prays may be inquired of by the Country”—if by the plaintiff; or, “And of this the said CD. puts himself upon the Country”—if by the de­fendant.1 Wherever, therefore, a Denial or Contradiction of Fact occurs in Pleading, Is­sue ought at the same time to be Tendered on the Fact Denied, by Concluding the Plead­ing in One of the above Forms, The Form of Tendering Issue to be tried by Matter of Record is as follows: The Party setting up the Matter of Record (in the Plea, for in­stance) says: “And this the said CD. is ready to Verify by the said Record.” The other Party, after denying the existence of the Record (in the Replication, for instance), says: “And this he, the said A.B., is ready to Verify when, where, and in such manner as the Court here shall order, direct, or ap­point.”

The reason is that, as it sufficiently ap­pears what is the Issue or Matter in dispute, it is time the Pleadings should close and the method of deciding the Issue be adjusted; and the Conclusion in the above Form al­ways refers the decision to a Trial by Jury. The Pleadings which should thus conclude “to the Country” embrace all Forms of the

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