Protestation

The name of a particular formula formerly used in common-law pleading, when it was expedient for a party to plead in such a manner as to avoid any implied admission of a fact which could not with propriety or safety be positively affirmed or denied. This might be done by the party interposing an oblique allegation or denial of some fact, protesting that such a matter did or did not exist, and at the same time avoiding a direct affirmation or denial. This was technically termed a protestation. Such practice has, however, by a late rule of court (Hil. T. 4 Wm. IV.), been disallowed. Coke defines a protestation to be an exclusion of a conclusion. For the use of it is to save the party from being concluded with respect to some fact or circumstance which cannot be directly afl[irmed or denied without falling into duplicity of pleading; and which yet, if he did not thus enter his protest, he might be deemed to have tacitly waived or admitted. Protestation is said to be of two kinds; 1. When a man pleads any thing which he dare not directly affirm or cannot plead, for fear of making his plea double; as if in conveying to himself by his plea a title, he ought to plead divers descents by divers persons, and he dare not affirm that they were all seised at the time of their death, or, although he could do it, yet it will be double to plead two descents, of both which each one by Itself may be a good bar, then the defendant ought to plead and allege the matter, introducing the word proteatando, — as to say (by protestation) that such a one died seised. &c., and that the adverse party cannot travei'se. 2. When one is to answer two matters, and yet by law he ought to plead but to one, then in ^the beginning of his plea he may sa.y protestando et jion cognoscendo such part of the matter to be true (and then making his plea further), sed pro placilo in hoc parte, &c., and so he may take issue on the other part of the matter; and then he is not concluded by any of the rest of the matter which he hath by protestation so denied. In other words, the use of a protestation in pleading seems to have been this: when one party alleged or pleaded several matters, and the other party could only offer or take issue on one of them, he protested against the others, — in such case, should the issue, on trial, be found against the latter party, the