Averment

An averment is a positive statement: and is used in opposition to argument, or inference.

In pleading. A positive statement of facts, as opposed to an argumentative or inferential one. Cowp. 683; Bac. Abr. "Pleas" (B). Averments must contain not only matter, but form. In old pleading, the conclusion' of a plea, whereby the pleader alleged his readiness to verify the foregoing. Averments were formerly said to be general and particular; but only particular -^

— Particular Averments. The assertions of particular facts. There must be an averment of every substantive material fact on which the party relies, so that if may be replied to by the opposite party. —^Negative Averments. Those in which a negative is asserted. Generally, under the rules of pleading, the party asserting the affirmative must prove it; but an averment of illegitimacy (2 Selw. N. P. 709), or criminal neglect of duty, must be proven (2 Gall. [U. S.] 498; 19 Johns. [N. Y.] 345; 1 Mass. 54; 10 East, 211; 3 Campb, 10; 8 Bos. & P. 302; 1 Greenl. Ev. § 80; 3 Bouv. Inst, note 3089). Immaterial and Impertinent Averments. Those which need not be made, and if made, need not be proved. They are synonymous. 5 Dowl. & R. 209. The allegation of deceit in the seller of goods in action on the warranty is such an averment. (2 East, 446; 17 Johns. [N. Y.] 92) Unnecessary Averments. Statements of matters which need not be alleged, but which, if alleged must be proved. Garth. 200.

A positive statement of facts, as opposed to an argumentative or inferential one. Bacon, Abr. Pleas, B. Averments were formerly said to be general and particular; but only particular averments are found in modern pleading. 1 Chit. PI. 277. Particular averments are the assertions of particular facts. There must be an averment of every substantive material fact on which the party relies, so that it may be replied to by the opposite party. Negative averments are those in which a negative is used. Generally, under the rules of pleading, the party asserting the affirmative must prove it; but an averment of illegitimacy, 2 Sehvyn, Nisi P. 709, or criminal neglect of duty, must be proven; U. S. v. Hay ward, 2 Gall. 498, Fed. Cas. No. 15,336; Hartwell v. Root, 19 Johns. (N. Y.) 315, 10 Am. Dec. 232; Com. v. Stow, 1 Mass. 54; 10 East 211; 3 Campb. 10; 3 B. & P. 302; 1 Greenl. Ev. § 80. Immaterial and impertinent averments (which are synonymous, 5 D. & R. 209) are those which need not be made, and, if made, warranty is such an averment; 2 East 446; Panton v. Holland, 17 Johns. (N. T.) 92, 8 Am. Dec. 369. Unnecessary averments are statements of matters which need not be alleged, but which, if alleged, must be proved. Carth. 200. General averments are almost always of 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, etc. But they need not be in these words; for any words which necessarily imply the matter intended to be averred are sufficient.

In pleading. A positive statement of facte. In opposition to argument or inference. 1 Chit. PI. 320.

In old pleading. An offer to prove a plea, or pleading. The concluding part of a pica, replication, or other pleading, containing new affirmative matter, by which the party offers or declares himself "ready to verify."

A positive statement of facts, in pleading, opposed to argument or inference. In old pleading, an offer to prove a pleading, and also the proving. Proof, in general. "~~

In pleading. stutement of facts, in opposition or inference. 1 Chit. Pl. 320.

In ofd pleading. An offer to or pleading. The concluding part replication, or other pleading, affirmative matter, by which the or declares himself “ready to verify.”

' A positive statement of the truth of a fact; a formal allegation in pleading. Aver. To assert for the truth; to state in ■ positive terms; to allege formally. Averments are spoken of as "affirmative" and "negative,'' as "general" and "particular" or "specific," as "material" and "immaterial," as " unnecessary," "impertinent," etc., with substantially the same meaning as are "allegations." See Allegation. ' Padelford v. Boardman, 4 Mass. 549 (1808). » Bargett v. Orient Ins. Co., ante. s Columbian Ins. Co. o. Ashby, 13 Pet. 337-38 (1839), Stoiy, J. < Mc Andrews u Tliatcher, 3 Wall. 370, 376 (1865), Clifford, J. See also 3 Kent, 235. » The Joseph Farwell, 31 F. K. 841 (1887), Toulmin, J. = Heye v. North German Lloyd, 33 F. E. 65 (1887), An averment in a declaration is a direct and positive allegation of fact, made in a inanner capable of being traversed. It includes the idea of an affirmation to be made out by inference and induction, l " The use in pleading of an averment is to ascertain that to the coiut which is generally or doubtfully expressed; so that the court may not be perplexed of whom, or of what, it ought to be understood; and to add matter to the plea to make doubtful things clear " — as, an averment in an action of slander." There is no particular form of words in use. The important matter is that each substantial fact be so averred as to be susceptible of a simple admission or denial. See Vertfy.

The ending part of a plea in confession and avoidance, or any affirmative pleading, which offers to verify the plea; the verification, v. Aver.

In pleading. A positive statement of facts, in opposition to argument or inference. 1 Ckitt PL 320. Usually expressed or introduced by the words, — " And the said avers, and in fact says." See Id. 324.

in 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; Lord Coke says averments are twofold, 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 avowries which are in the nature of counts, need not be averred,) the form of such averment being, et hoc paratus-est verificare. Particular averments are assurances 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. 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 satth, or although, or because, or with this 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. Pl. 308; Arch. ‘Civ. Pl. 163; Doct. Pl. 120; 1 Lilly’s Reg. 209.