averment


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Related to averment: Negative averment

Averment

The allegation of facts or claims in a Pleading.

The Federal Rules of Civil Procedure require that averments be simple, concise, and direct.

averment

an allegation in pleadings.

AVERMENT, 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.
     2. Lord Coke says averments are two-fold, 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 a vowries which are in the nature of counts, need not be averred, the form of such averment being et hoc paratus. est verificare.
     3. Particular averments are assertions 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.
     4. Averments were formerly divided into immaterial and impertinent; but these terms are now treated as synonymous. 3 D. & R. 209. A better division may be made of immaterial or impertinent averments, which are those which need not be stated, and, if stated, need not be proved; and unnecessary averments, which consist of matters which need not be alleged, but if alleged, must be proved. For example, in an action of assumpsit, upon a warranty on the sale of goods, allegation of deceit on the part of the seller is impertinent, and need not be proved. 2 East, 446; 17 John. 92. But if in an action by a lessor against his tenant, for negligently keeping his fire, a demise for seven years be alleged, and the proof be a lease at will only, it will be a fatal variance; for though an allegation of tenancy generally 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 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 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 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 United States Dig. Pleading II (c); 3 Bouv. Inst. n. 2835-40.

References in periodicals archive ?
In consequence, the Duke's averments on this point should be treated as admitted.
the general averment was sufficient for Rule 8(a) purposes.
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.
In every prosecution under this section an averment contained in the complaint that the Minister directed the defendant to be removed to or kept within a reserve or district shall be deemed to be proved in the absence of proof to the contrary."
Between WSJ and the Nigerian Army, Nigerians know whose averment to believe and whose, ab-initio, is prone to lies.
But Annie's averment regarding the Marriage Certificate attached to her Answer, is improbable to believe.
2004) (finding that notwithstanding plaintiff's general averment that all conditions precedent had been satisfied, appellate court determined "the [c]omplaint should have been dismissed as the exhibits did not meet the requirements of a demand letter").
(18) In deciding the case before him, a sticking point arose on the 'ancient' requirement that treasure be hidden, (19) The Lord Ordinary did not grant decree de plano--that is, without the commencement of a trial--in respect to the pursuer's averment that the objects were hidden in the ground, on the basis that there would have to be a proof in order to establish whether the objects were indeed hidden in this way.
Permission to effect service on Argentina out of the jurisdiction was obtained from [the Commercial Court] on the basis of an averment that the common law action that was to be brought in England on the New York judgment was also a 'proceeding relating to a commercial transaction.'" [282-3]
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.
We need not, however, rely solely on the authority of Senator Howard for support of this averment. Howard's understanding of the existing "law of the land" was reinforced by several of his fellow Senators, including Lyman Trumbull, the co-author of the 13th Amendment (the other of the two "Reconstruction Amendments").
Although defendants' inverse condemnation claim alleges they had 'not been offered just compensation for the alleged talking of their property' and prayed the trial court to empanel a jury to try the issue of just compensation, defendants' averment was unnecessary and redundant, because the issue of compensation was to be decided in accordance with the provisions of N.C.