AVERMENT

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AVERMENT

AVERMENT, pleading. Comes from the Latin verificare, or the French averrer, and signifies a positive statement of facts in opposition to argument orinference. Cowp. 683, 684. 2. Lord Coke says averments are two-fold, namely, general andparticular. A general averment is that which is at the conclusion of anoffer to make good or prove whole pleas containing new affirmative matter,but this sort of averment only applies to pleas, replications, or subsequentpleadings for counts and a vowries which are in the nature of counts, neednot be averred, the form of such averment being et hoc paratus. estverificare. 3. Particular averments are assertions of the truth of particularfacts, 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 aparticular averment the party merely protests and avows the truth of thefact or facts averred, but in general averments he makes an offer to proveand make good by evidence what he asserts. 4. Averments were formerly divided into immaterial and impertinent; butthese terms are now treated as synonymous. 3 D. & R. 209. A better divisionmay be made of immaterial or impertinent averments, which are those whichneed not be stated, and, if stated, need not be proved; and unnecessaryaverments, which consist of matters which need not be alleged, but ifalleged, must be proved. For example, in an action of assumpsit, upon awarranty on the sale of goods, allegation of deceit on the part of theseller is impertinent, and need not be proved. 2 East, 446; 17 John. 92. Butif in an action by a lessor against his tenant, for negligently keeping hisfire, a demise for seven years be alleged, and the proof be a lease at willonly, it will be a fatal variance; for though an allegation of tenancygenerally 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 avermentsare always in the same form. The most common form of making particularaverments is in express and direct words, for example: And the party aversor 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 implythe 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; 1Saund. 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 United States Dig. Pleading II (c); 3Bouv. Inst. n. 2835-40.

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