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.