Averment of

NOTICE, AVERMENT OF, in pleading. This is frequently necessary, particularly in special actions of assumpsit.
     2. When the matter alleged in the pleading is to be considered as lying more properly in the knowledge of the plaintiff, than of the defendant, then the declaration ought to state that the defendant had notice thereof; as when the defendant promised to give the plaintiff as much for a commodity as another person had given, or should give for the like.
     3. But where the matter does not lie more properly in the knowledge of the plaintiff, than of the defendant, notice need not be averred. 1 Saund. 117, n. 2; 2 Saund. 62 a, n. 4; Freeman, R. 285. Therefore, if the defendant contrasted to do a thing, on the performance of an act by a stranger, notice need not be averred, for it lies in the defendant's knowledge as much as the plaintiff's, and he ought to take notice of it at his peril. Com. Dig. Pleader, C 75. See Com. Dig. Id. o 73, 74, 75; Vin. Abr. Notice; Hardr. R. 42; 5 T. R. 621.
     4. The omission of an averment of notice, when necessary, will be fatal on demurrer or judgment by default; Cro. Jac. 432; but may be aided by verdict; 1 Str. 214; 1 Saund. 228, a; unless in an action against the drawer of a bill, when the omission of the averment of notice of non-payment by the acceptor is fatal, even after verdict. Doug. R. 679.

A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.

References in periodicals archive ?

'However, these are legal conclusions and not averment of ultimate facts.

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Indeed, Officers Markowski and Bragg never made a single factual averment of their own to explain and support their conduct in shooting Holloman's son to death, both choosing instead to "answer" her amended complaint by simply generally denying its allegations.

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Taking into consideration that the advanced state of technology of the electronic banking system allows for the closure of bank accounts or transfer of funds in a matter of seconds, the averment of the AMLC that there is an imminent danger that the funds in the subject bank accounts, investment and insurance policies will be withdrawn, transferred, concealed or otherwise disposed of is well taken, the court said.

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It is the averment of the Company that as a direct result of these published articles that contain information which is falsein content and context, and therefore defamatory, misleading and prejudicial to the Company and its officers, led to the incurrence of significant reputational damage and financial losses, the quantum value of which is determinable.

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effectively predicted [the Pennsylvania Supreme Court] would require averment of a breach of some particular provision of the agreement of representation, or a failure to follow specific client instructions, to support a contract-based claim.

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With Bell's (1995) interest convergence theory, Peller's (1995) reflections on the limitations of integrationist ideology, and Harris's (1995) averment of whiteness as property in mind, we call for curricula, pedagogies, and educational policies aimed at intersectionalities.

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In technical, drafting terms this can serve as a useful device for trying to reconcile the irreconcilable; but while it seems to have been enough, politically, to have brought in two of the three partners in 2008, it was evidently not enough to satisfy the third party and may explain that third party's refusal to sign on also to that bilateral, two-party association agreement and to limit itself, instead, to its own, rather more open-ended averment of support.

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He also argued that inadequate particulars had been given and that the averment to the effect that the meeting was held for the purposes of advocating an unlawful doctrine was an averment of law, not of fact, and therefore of no evidentiary value.

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A second reason was that Rule 9(b) also did not "require any particularity in connection with an averment of intent, knowledge or condition of the mind." [17] Instead, it merely "require[d] the identification of the circumstances constituting fraud so that the defendant can prepare an adequate answer from the allegations." [18] Under Rule 9(b), scienter could still be averred generally.