Averment

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.