1. Common-law pleading. A declaration by which a party makes an oblique allegation or denial of some fact, claiming that it does or does not exist or is or is not legally sufficient, while not directly affirming or denying the fact. [Cases: Pleading 128.]
“The practice of protestation of facts not denied arose where the pleader, wishing to avail himself of the right to contest in a future action some traversable fact in the pending action, passes it by without traverse, but at the same time makes a declaration collateral or incidental to his main pleading, importing that the fact so passed over is untrue. The necessity for this arose from the rule that pleadings must not be double, and that every pleading is taken to admit such matters as it does not traverse. Such being its only purpose, it is wholly without effect in the action in which it occurs ….” Benjamin J. Shipman, Handbook of Common-Law Pleading § 207, at 358 (Henry Winthrop Ballantine ed., 3d ed. 1923).
2. Scots law. A defendant’s act in a civil case to compel a pursuer (plaintiff) who has failed to take the necessary procedural steps either to proceed or to allow the action to fall.
