PROTESTATION. In Pleading. The indi rect affirmation or denial, by means of the word protesting (in the Latin form of plead ings, protestando), of the truth of some mat ter which cannot with propriety or safety be positively affirmed, denied, or entirely passed over. See 3 Bla. Com. 311.
The exclusion of a conclusion. Co. Litt. 124.
"A saving to the party who takes it from being concluded by any matter alleged, or ob jected against him on the other side, upon which he cannot take issue;" 2 Wms. Sound. 103. "It is a safeguard, which keeps the party from being concluded by- the plea he is to make, if the issue be found for him;" Co. Litt. 124, b.
Its object was to secure to the party mak ing it the benefit of a positive affirmation or denial in case of success in the action, so far as to prevent the conclusion that the fact was admitted to be true as stated by the opposite party, and at the same time to avoid the objection of duplicity to which a direct affirmation or denial would expose the pleading; Briggs v. Dorr, 19 Johns. (N. Y.) 96; 2 Sound. 103; Com. Dig. Pleader (N). Matter which is the ground of the suit upon which issue could be taken could not be pro tested ; Plowd. 276; Snider v. Croy, 2 Johns. (N. Y.) 227. But see 2 Wms. Saund. 103, n. Protestations are no longer allowed; 3 Bla. Com. 312 ; and were generally an unneces sary form ; 3 Lev. 125.
It is of two sorts : 1. When a man pleads anything which he dares not directly affirm, or cannot plead for fear of making his plea double ; 2. When a person is to answer two matters, and yet by law he can only plead to one of them, then in the beginning of his plea he may say, protesting, or not acknowl edging such part of the matter to be true, and adds, "but for plea in this behalf, &c." By this means he is not concluded by any of the rest of the matter which he has by protestation so denied, but may at another time take issue upon it; 2 Wms. Sound. 103.
The common form of making protestations was as follows: "because protesting that," etc., excluding such matters of the adver sary's pleading as are intended to be exclud ed 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 rejoiner, etc., as the case might be) "is wholly insufficient in law." See, gen erally, 1 Chitty, Pl. 534; Com. Dig. Pleader (N); Steph. P1. 235.
In Practice. An asseveration made by tak ing God to witness. A protestation is a form of asseveration which approaches very near ly to an oath. Wolflius, Inst. § 375.