PROTESTANDO

1 definition found

From Bouvier's Law Dictionary, Revised 6th Ed (1856) [bouvier]:

  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.