AVERMENT. In Pleading. A positive statement of facts, as opposed to an argument ative or inferential one. Cowp. 683 ; Bacon, Abr. Pleas, B.
Averments were formerly said to be general and particular; but only particular averments are found in modern pleading. 1 Chitty, Plead. 277.
Particular averments are the assertions of particular facts.
There must be an averment of every substan tive material fact on which the party relies, so that it may be replied to by the opposite party.
Negative averments are those in which a negative is asserted.
Generally, under the rules of pleading, the party asserting the affirmative must prove it; but an aver ment of illegitimacy, 2 Selwyn, Nisi P. 709, or criminal neglect of duty, must be proven. 2 Gall. C. C. 498; 19 Johns. N. Y. 345; 1 Mass. 54; 10 East, 211; 3 Campb. 10; 3 Bos. & P. 302; 1 Green leaf, Ev. 80 ; 3 Bouvier, Inst. n. 3089.
Immaterial and impertinent averments (which are synonymous, 5 Dowl. & R. 209) are those which need not be made, and, if made, need not be proved. The allegation
of deceit in the seller of goods in action on the warranty is such an averment. 2 Eaet, 446 ; 17 Johns. N. Y. 92.
Unnecessary averments are statements of matters which need not be alleged, but which, if' alleged, must be proved. Garth. 200.
2. Averments must contain not only mat ter, hut form. General averments are always of 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 Viner, Abr. 357 ; Abr. Pleas, B 4; Comyns, Dig. Pleader, C C 67, 68, 69, 70; 1 Wms. Saund. 235 a, n. 8; 3 id. 352, n. 3; 1 Chittys, Plead. 308; Arch bold, Civ. Plead. 163 ; 3 Bouvier, Inst. n. 2835-40.