#### Clark *v.*Faulkner and Another.

To an action of debt, the defendant pleaded a release, which he averred to have been lost and destroyed by accident. The plaintiff replied by denying this averment in the plea, and protesting that he had not released. Held, that the replication was good without being sworn to; the' statute which requires an affidavit, when the execution of a writing is denied, not being applicable to the case.

A protestation is not a denial, in the suit in which it is made, of the allegation protested against.

ERROR to the *Clark*Circuit Court.

Holman, J.

Declaration in debt. Defendants pleaded, that after the commencement of the action, the plaintiff, by his writing obligatory,had released to the said defendants the debt in the declaration mentioned, together with the interest that had accrued thereon and the costs of suit; which release they could not produce in Court, it having been lost and destroyed hy accident. The plaintiff replied, that the release was not lost and destroy*219ed, as the defendants had pleaded; protesting that he had never executed said release. The Court rejected the replication, because it was not sworn to; and gave judgment for the defendanís.

*Thompson*and Naylor, for the plaintiff.

*Hoiok,*for the defendants.

This judgment is erroneous. The excuse given by the defendants, in their plea, for not making profert of the release, was traversable. See 1 Chitt. Pl. 349. — 3 T.R. 161. — 5 Bac. 432 (1). The replication traversing the loss of the release was proper, and should have been received by the Court without being supported by oath. The denial of the release in the protestando, presented no question for the consideration of the Court or jury, and of course did not fall within the act of assembly requiring pleadings, that deny the execution of written instruments, to be supported by oath.

*Per Curiam.*

The judgment is reversed, and the proceedings subsequent to the replication are set aside, with costs. Cause remanded, &c.

(1)

 The general rule, where either party pleads a deed, is, to make profert of it as follows: — “Which said writing obligatory, (or indenture, &c.,) sealed with the seal of the said-, the said-now brings here into Court, the date whereof is the day and year aforesaid.” Steph. Pl. 439. To this rule there are some exceptions: as, where the deed remains in another Court; Co. Litt. 231; *Wymark's*case, fi Co. it. 74: — if it be in the possession of the opposite party; *Wymark's*case, supra: — if destroyed by fire; *Leyfield's*case, 10 Co. R. 92,93: — or, as in the text, if lost and destroyed by time and accident; *Ready.*Brookman, 3 T. R. 151., The last-cited case, says Ld. Ellenbomigh, goes a step further than the cases had gone before; and without saying that that step should be retraced, we ought not to go a step further, but stop there, *Hendy v.*Stephenson, 10 East, 5£. If the obligor fraudulently or innocently break oif the seal, the declaration averring that fact is good without profert. *Cults v. U. States,*1 Gall. 69. Vide 1 Will. Saund. 9, n. 1. — 1 Chitt. Pl. 349. In these cases — when the deed is destroyed, &c__profert must not be made; *Smith v. Woodward,*4 East, 585; but an excuse for not making it must be inserted in the pleading, according to the fact: thus, “And which said writing obligatory having been destroyed by fire, the said-cannot produce the same to the said Court here.” 2 Chitt. Pl. 197. If, however, in cases requiring profert, or an excuse for the omission, none be made, the defect can b a reached only by a special demurrer, Stat. 4 and 5 Anne, c, 16. — Ind, Stat. 1823, p. 298, — 1 Chitt. Pl. 350.