PROTESTANDO

PROTESTANDO, pleading. According to Lord Coke, Co. Litt. 124, it is an 
exclusion of a conclusion. It has been more fully defined to be a saving to 
the party who takes it, from being concluded by any matter alleged or 
objected against him, upon which he cannot join issue. Plowd. 276, b; 
Finch's L. 359, 366, Lawes, Pl. 141. 
     2. Matter on which issue may be joined, whether it be the gist of the 
action, plea, replication or other pleading, cannot be taken by 
protestation; Plowd. Com. 276, b; although a man may take by protestation 
matter that he cannot plead, as in an action for taking goods of the value 
of one hundred dollars, the defendant may make protestation that they were 
not worth more than fifty dollars. It is obvious that a protestation, 
repugnant to or inconsistent with the gist of the plea, &c., cannot be of 
any benefit to the party making it. Bro. Abr. tit. Protestation, pl. 1, 5. 
It is also idle and superfluous to make protestation of the same thing that 
is traversed by the plea; Plowd. 276, b: or of any matter of fact which must 
necessarily depend upon another fact protested against; as, to protest that 
A made no will, and that he made no executor, which he could not do if there 
was no will. Id. 
     3. The common form of making a protestando is in these words, "Because 
protesting that," &c., excluding such matters of the adversary's pleading as 
are intended to be excluded 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, 
&c., as the case may be, is wholly insufficient in law." No answer is 
necessary to a protestando, because it is never to be tried in the action in 
which it is made, but of such as is excluded from any manner of 
consideration in that action. Lawes' Civ. Pl. 143. 
     4. Protestations are of two sorts; first, when a man pleads anything 
which he dares not directly affirm, or cannot plead for fear of making his 
plea double; as if, in conveying to himself by his plea a title to land, the 
defendant ought to plead divers descents from several persons, but dares not 
affirm that they were all seised at the time of their death; or, although he 
could do so, it would make his plea double to allege two descents, when one 
descent would be a sufficient bar, then the defendant ought to plead and 
allege the matter introducing the word "protesting," thus, protesting that 
such a one died seised, &c., and this the adverse party cannot traverse. 
     5. The other sort of protestation is, when a person is to answer two 
matters, and yet by law he can only plead one of them, then in the beginning 
of his plea he may say, protesting or not acknowledging such part of the 
matter to be true, and add, "but for plea in this behalf," &c., and so take 
issue, or traverse, or plead to the other part of the matter; and by this he 
is not concluded by any of the rest of the matter, which he has by 
protestation so denied, but may afterwards take issue upon it. Reg. Plac. 
70, 71; 2 Saund. 103 a, n. 1. See 1 Chit. Pl. 534; Arch. Civ. Pl. 245; Doct. 
Pl. 402; Com. Dig. Pleader, N; Vin. Abr. Protestation Steph. Pl. 235.