PROTESTATION. In Pleading. The indirect affirmation or denial, by means of the word protesting (in the Latin form of pleadings, protestando), of the truth of some matter which cannot with propriety or safety be positively affirmed, denied, or entirely passed over. See 3 Sharswood, Blacket. Comm. 311.
The exclusion of a conclusion. Coke, Litt. 124.
2. Its object was to secure to the party making it the benefit of a positive affirmation or denial in case of success in the action, sk far as to prevent the conclusion that the fact was admitted to be true as stated by the op posite party, and at the same time to avoid the objection of duplicity to which a direct affirmation or denial would expose the plead ing. 19 Johns. N. Y. 96 ; 2 Saund. 103 ; Comyns, Dig. Pleader (N); Plowd. 276; Lewes, Plead. 171. Matter which is the ground of the suit upon which issue could be taken could not be protested. Plowd. 276 ; 3 Wils. 109 ; 2 Johns. N. Y. 227. But
see 2 Wms. Saund: 103, n. Protestations aro no longer allowed, 3 Sharswood, Blackst. Comm. 312, and were generally an unneces sary form. 3 Lev. 125.
3. The common form of making protest ations is as follows: " because protesting that," etc., excluding such matters of the ad versary's pleading as are intended to be ex cluded in the protestando, if it be matter of fact ; or, if it be against the legal sufficiency of his pleading, " because protesting that the plea by him above pleaded in bar ' (or by way of reply, or rejoinder, etc., as the case may be) " is wholly insufficient in law." See, generally, 1 Chitty, Plead. 534 ; Arch bold, Civ. Plead. 245 ; Comyns, Dig. Pleader (N); Stephen, Plead. 235.
In Practice. An asseveration nriade by taking God to witness. A protestation is a form of asseveration which approaches very nearly to an oath. Wolffius, Inst. 375.