AVERMENT,
pleading. Comes from the Latin verificare, or the French averrer, and
signifies a positive statement of facts in opposition to argument or
inference. Cowp. 683, 684.
2.
Lord Coke says averments are two-fold, namely, general and particular. A
general averment is that which is at the conclusion of an offer to make
good or prove whole pleas containing new affirmative matter, but this
sort of averment only applies to pleas, replications, or subsequent
pleadings for counts and a vowries which are in the nature of counts,
need not be averred, the form of such averment being et hoc paratus. est
verificare.
3.
Particular averments are assertions of the truth of particular facts,
as the life of tenant or of tenant in tail is averred: and, in these,
says Lord Coke, et hoc, &c., are not used. Co. Litt. 362 b. Again,
in a particular averment the party merely protests and avows the truth
of the fact or facts averred, but in general averments he makes an offer
to prove and make good by evidence what he asserts.
4.
Averments were formerly divided into immaterial and impertinent; but
these terms are now treated as synonymous. 3 D. & R. 209. A better
division may be made of immaterial or impertinent averments, which are
those which need not be stated, and, if stated, need not be proved; and
unnecessary averments, which consist of matters which need not be
alleged, but if alleged, must be proved. For example, in an action of
assumpsit, upon a warranty on the sale of goods, allegation of deceit on
the part of the seller is impertinent, and need not be proved. 2 East,
446; 17 John. 92. But if in an action by a lessor against his tenant,
for negligently keeping his fire, a demise for seven years be alleged,
and the proof be a lease at will only, it will be a fatal variance; for
though an allegation of tenancy generally would have been sufficient,
yet having unnecessarily qualified it, by stating the precise term, it
must be proved as laid. Carth. 202.
5.
Averments must contain not only matter, but form. General averments are
always in the same form. The most common form of making particular
averments is in express and direct words, for example: And the party
avers or in fact saith, or although, or because, or with this that, or
being, &c. But they need not be in these words, for any words which
necessarily imply the matter intended to be averred are sufficient. See,
in general, 3 Vin. Abr. 357 Bac. Abr. Pleas, B 4 Com. Dig. Pleader, C
50, C 67, 68, 69, 70; 1 Saund. 235 a, n. 8 3 Saund. 352, n. 3; 1 Chit.
PI. 308; Arch. Civ. PI. 163; Doct. PI. 120; 1 Lilly's Reg. 209 United
States Dig. Pleading II (c); 3 Bouv. Inst. n. 2835-40.
No comments:
Write comments