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way; Wil

against the party taking it, in another action. A protestando Ch. 177. always precedes the plea, in this manner; and the said D. Art. 7. protesting, the said tenements were not included in the fine levied, as aforesaid, &c. &c., for plea says, &c. Several purposes are ascribed to a protestando in the books. It is stated to be often used to avoid an implied admission of a fact, which cannot, with propriety or safety, he positively affirmed or denied. It is an exclusion of a conclusion.

$ 2. Protesting the plt. is a villain; for plea, no demand ; 3 Bl. Com. by the protestando, the future vassalage of ihe plt. was saved 311, 312. to the deft. in case the issue was found in favour of the deft. $ 3. Protest, that A died seized; plea, that B died seized, 3 Inst.

Ci. and the matter of this protest the plt. cannot traverse.

305, 306. § 4. When one is to answer to two matters, but can plead 5 Mod. 136. only to one, for duplicity, he may take a protest to one, and Finch'sLaw, plead to the other, and take issue; and he is not concluded Inst. C1.306. by any of the rest of the matter he has by protestation denied, but he may afterwards take issue thereon.

It is of two sorts : 1. When a man pleads any thing he dare 2 Saund. not directly affirm, or cannot plead for fear of making his 103, in Hol

dipp v. Ot. plea double; as if to make title to land, the deft. ought to plead divers descents from several persons, but dare not af- liams' notes. firm they were all seized at the time of their death; and if –7 D. & E. he could so plead, it would make his plea double, to allege 447 Blacks two descents when one descent would be a sufficient bar; then ing. -9 East, the deft. ought to plead and allege the matter, interlacing the 298, 304, word“ protesting;" thus protesting that such a one died Philip 7. Baseized, &c., and this the adverse party cannot traverse: the Evid. 172.second sort is, when one is to answer two matters; yet, by law, 9 East, 157. can only plead to one of them; then he may say, protesting, or not acknowledging such part of the matter to be true ; and adds for plea, &c.: in this way " 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.” A proteslando requires no answer.

$ 5. But in some books it is said that the effectual matter Law's Pl. of the bar, or things issuable or traversable, may not be ci. 306, 307, taken by protestando. A protest repugnant to itself is void. 308, 309. The party may protest he has performed his covenant; also, that the other party did not perform his: that the information is insufficient in law: that he has fully administered, and for plea, that he did not sell or waste : that he has kept his warranty, and that H. had no right: for plea, did not eject; Co. Ent. 43. protest, not any thing true; and it is idle to protest as to a thing that is traversed by the plea.

Plow. 271.

D. 460.


CH. 177. § 6. So, the defi. may protest, the goods charged were not' Art. 7. so many, and of so much value. Protest does not avail, for

instance, in the villain's case above stated, if the issue be Ras. En.636. found for him ; but it does as to the value of the land, in an -4 Bac. Abr. action on the warranty, though his plea be found against 126.-5 Com. him, for he could not plead the value; but generally a pro

test cannot be taken of a matter issuable, nor avail the party Ch. 120, a.

taking it, when the issue is found against him; but a few 5, s. 2.- Ch. 124, a. 2, s.

special cases are exceptions. 1.-Ch. 226, § 7. This was an action of account against Saunders, as a. 6, s. 3.

surviving bailiff. Plea, &c. Replication, that the goods 3 Wils. 94, were intrusted with the deceased partner, by the deft., (they Godfrey v.

being cofactors,) without the direction, consent, or privity of the plt. Rejoinder, protesting that the said goods were intrusted by the deft. to the deceased alone, by the plt's. consent. The court held, this protestando was bad; for the deft., by his plea before the auditors, admitted and relied on the plt's. consent as material; therefore, when the plt. tendered, in his re

plication, an issue on the consent, matter material and issuable, Plow. 676.- the deft. could not take matter issuable by protest, or if he do, Finch, 359, it cannot avail him, except in a few cases : but where the

3 . 1.10, 111. issue is found for the party, his protestando avails him; but

if against him, there is this distinction : 1. If the matter on which the protest is taken, be not issuable or pleadable, it avails him; as if an infant sue his guardian, and appears by attorney; protest, the plt. is a minor, avails the deft., though the issue be found against him: 2. If the matter on which the protest is taken be issuable, or that which may be pleaded, the protest avails not; as if the villain sued his lord, and the Jord

protest the plt. is his villain, and plead his other matter in bar, and issue is joined; now, if the issue be found for the lord, the plt. is a villain still; but if against the lord, and for the villain, he is free, for the lord might have pleaded, (instead of protesting) that the plt. was his villain, and issue

taken thereon. Plow. 276,

$ 8. A protestando, inconsistent with the plea, or itself, is Graysbrook 2. Fox; cit- bad; as where to an appeal of mayhem, the deft. protested ed 2 Saund. that if the plt. had any hurt or mayhem, it was from his own 103, b. c. assault, and pleaded he was not maimed. This protestation Williams

is repugnant to the plea. So, an idl eor superfluous protestando Keilw. 95.— is bad; as in an action by the executor of A, the dest. proCro. El. 815. tests A did not make a will; also, that he did not make the

--Co. L. 126. plt. executor: second is idle, for if he made no will, he did not -Plow. 1,2. make the plt. executor.

But held, that a superfluous or repugnant protestation, does not vitiate the plea, though shewn for cause of demurrer; "for the intent of the protestation is, that the party may not be concluded in another action ;” nor

notes; cites


can that which is the ground of the action, be taken by pro- CH. 177. testation, as it may be put in issue, as in the villain's case Art. 8. above; and as, if the plt. be A's executor; may be put in issue, and defeat the suit.

ART. 8. Estoppels.

§ 1. This is an important branch in pleadings, already See Ch. 160. in part considered, Ch. 160, a. 1, English cases embraced in ihirty-four rules; a. 2, American cases. Estoppels are matters in pleadings very much scattered throughout the books; and may here be further pursued.

The manner of pleading an estoppel, is in substance thus; for instance, in case of variance, between the complaint and declaration after imparlance, and the plt. says the deft. ought not to be admitted to plead variance between the complaint and declaration, because the plt. says he, at such a court

, 7 Inst. Cl. declared against the deft. on the complaint, to which decla 152.-Clif. ration, the deft. in that court prayed leave to imparl, &c. and had it, as appears by the record, &c. ; hoc paratus ; wherefore he prays judgment if the deft. ought to be admitted to plead that plea of variance, &c.; or in another form, he prays judgment that the deft. to the plt's. writ may further answer; another case prays judgment as well if the deft. ought to be admitted against that record, to say, the said H. before the time of suing out the original writ, in the replication mentioned, died, as for his damages occasioned by the non-performance of the separate promise, to be adjudged to him. The deft. says he ought not to be precluded his plea of variance, &c. because his imparlance was with reserving all excepcions to the complaint, &c. and traverses, that there is any record but of a special imparlance, &c.

§ 2. The courts keep a strict hand upon estoppels, as their tendency is to preclude the truth, and may be demurred to. See Ch. 160; Ch. 91; and Index, Estoppels.

§ 3. The deft. was arrested by a wrong addition, and put Willis, 461, in hail, thus, “ A B, gent. who was arrested by the name of Smithson r.

Smith. A B, clerk.” Held, he was not estopped to plead, in abatement of the original action, that he was sued by the wrong addition ; but estopped if he put in bail by the name in the 1 Ld. Raym. writ. Lofft, 82.

729, HermitA, having no interest or estate in certain lands, demised kins.-i them by indenture, and afterwards purchased theni. Held, Salk. 275, he was estopped to say he had no interest in them, when he Holman v.

Hoare. bought them ; but if A have an interest in a part of the land, his lease will operate to pass an interest in that part, but by estoppel in the rest in which he has no interest: so, having an interest in a part does not exclude the estoppel as to the residue.

age 1. Tom

Outram v.

CH. 177. § 4. Certain indentures were made between the plt. and Art. 9. R. G.; and the deft. gave a bond to the plt., conditioned for

the performance by R. G. of all the covenants in the inden2 Bos. & P. ture made, or expressed to be made; both the same date. 299, Hosier Plea, that before the bond was executed, it was agreed the v. Searle.

pli. should grant to R. G. a lease under certain covenants, and for the performance of them, the deft. should give a bond as surety ; that he did give it accordingly, on which the action is brought; but the indenture mentioned in the condition of it, is the lease so agreed upon, and no other; but this lease was never executed. Held, on demurrer, that the deft. was estopped by the condition of his bond, from

pleading this matter. 3 East, 346, § 5. If a verdict be found on any fact or title distinctly

put in issue, in an action of trespass, this verdict may be Morewood.

pleaded as an estoppel in another action between the same

parties or their privies, in respect of the same fact or title. 3 Johns. Ca. § 6. A conveyance of land, at common law, by a person 101, Jackson against whom there is an adverse possession at the time of e. Brincker- the conveyance to a third person, is void; but the grantee's hoof.

title is not thereby devested or gone; nor will such a conveyance inure, by way of estoppel, for the benefit of the deft. in possession; nor can a stranger avail himself of an estoppel by a mere writing, or a matter in pais ; nor can any person be technically estopped, by a conveyance under the

statute of uses. 1 D.& F.701, $ 7. A lease of the premises in W., late in the occupation Doe r. Burt; of A, particularly describing them, part of which was a D.& E.609.-- yard. Held, it did not pass a cellar situated under that yard 6 Ves. J.397. in B's occupation, another tenant of the lessor; and he was 2 Johns.R. not estopped by his deed, to recover the cellar, and to shew

it was not intended to be leased in the said lease; and whether parcel or not of the thing demised, is always a mat

ter of evidence. Parol evidence admitted, &c. Willes, 12, § 8. Where the plt. replies, the deft. is estopped to plead Shelly v. his plea, he may demand judgment generally. Wright.

ART. 9. Averments. Ch.180,-a. 1. § 1. Averments are numerous and material in pleadings; -3 Inst. Cl. and in almost every part of them. A general averment is

the conclusion of every plea in bar, &c. containing matter

affirmed; "and this he is ready to verify." Mildmay's Particular averments are of particular facts; as where case, 1 Co. the life of tenant for life, or in tail, the age 176, &c.

is averred; also that places, sums of money, and persons named, are one and the same. The use of an averment is to ascertain that to the court, which is generally or doubtfully alleged, so that the court may not be perplexed of

Johns. R.192.


of a person,


&c. Mild

whom, or what it ought to be understood; and a man shall Ch. 177. never be estopped from making such averment to ascertain Art. 9. the intent of the parties, if it be not utterly inconsistent with the deed; therefore if there be any uncertainty in the con- 3 Inst. Ci. sideration of a deed, or in the thing granted, or in the per- 1 Phil. Ev. son to whom granted, an averment is allowed to make it

166.-What certain ; as if there be an express consideration mentioned is a material in a deed, as of money, another consideration may be aver- averment, or red, so it be not contrary to the deed, as the consideration the whole of marriage and jointure ; but no averment lies against a may be record; nor can a party aver a thing directly contrary to struck out, the condition of a bond; but may aver other considerations and leave a

right of acnot expressed.

§ 2. If the deft. justify the trespass, &c. at the same day 3 Inst. Ci. and place as stated in the declaration, he need not aver it is 316. the same trespass.

§ 3. It was held in this case, that where a good consider. 1 Co. 176, ation is expressed, a particular consideration, as blood,

. money, &c. may be averred. The consideration of £70 may's case. was expressed, and held, another consideration, as blood, &c. might be averred. One may explain his deed, but cannot aver any thing against it. Love and affection expressed, covenantee may say he is a relation. 2 Stra. 934, Goodtitle 0. Petto.

§ 4. See many aterments, and rules and cases as to them, American Precedents, p. 75 to 82, Ch. 11. Also Notices and Requests ; id.

Further rules and cases of averments of notice, request, and 2 Mod. 264, demand. It is a rule in pleading, that whenever an interest Steward, is to be determined, a demand must be made and averred in pleading, though the provision of the parties be, that if the 140, a. 6. rent, &c. be not paid in such a time, then the lease, &c. to 2 Mod. 203. be void.

§ 5. So, if a thing be to be done on request, within six months, or money to be paid, if the request be not made in that time, (and so averred,) it is a dispensation of that part of the condition; and then the law discharges the other part.

§ 6. If the plt. declare in assumpsit, against a town, for Butler r. maintaining its pauper, and omit to aver notice, this is a Cornwall, 2

Wils. 280. defect; but is cured by verdict. 4 Burr. 2018; 1 Mod. 169; 2 Burr. 899; 2 Show. 245; Dougl. 673, (654 ;) 1 D. & E. 141, Speares v. Parker. § 7. If referees award a sum of money to be paid on

Cro. Jam. demand, a special request must be made and averred; but 639, Waters if A be bound to B, on condition C shall enfeoff D, C has Co. Lit. 208.


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