Burroughs v. Clarke , 3 Gill 196 ( 1845 )

Magrtider, J.,

delivered the opinion of this court.

To an action upon a replevin bond, given by the first named defendant, as principal, and the other two defendants, as his securities, performance was pleaded in this suit. The replication is, that the defendant, Clarke, did not prosecute his writ with effect; thereupon the defendants rejoin, that the appellant was a petitioner for the benefit of the insolvent laws, and the first named defendant was appointed his trustee, and was entitled to sue for and recover all his interests of whatever nature, at and before the time of the institution of this suit. To this the plaintiff demurred, and the court overruled the dedemurrer.

It would, perhaps, be difficult to maintain, that the matter set forth in the rejoinder, and as it is set forth, constitutes a defence to this action. But of this it is unnecessary for us to speak. Even if, when pleaded properly, it was a bar to the action, still this rejoinder is a departure from, or relinquishment of his first plea, and a defendant is not permitted to depart from one defence which he has first made, in order to have recourse to another. If departures in pleading were to be allowed, it has been justly said, fihe who has a bad cause would never be brought to issue, and he who has a good one, would never obtain the end of his suit.” For this reason, if there were no other, the demurrer ought to have been sustained. It is well settled, that a departure in pleading is matter and substance, and need not be specially demurred to. See Archbold on pleading, 283.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.