AVERMENT. A positive statement of facts, as opposed to an argumentative or in ferential one. Bacon, Abr. Pleas, B.
Averments were formerly said to be general an particular ; but only particular averments are found in modern pleading. 1 Chit. Pl. 277.
Particular averments are the assertions of particular facts.
There must be an averment of every substantive 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 used.
Generally, under the rules of pleading, the party asserting the affirmative must prove it ; but an averment of illegitimacy, 2 Selwyn, Nisi P. 709, or criminal neglect of duty, must be proven; U. S. v. Hayward, 2 Gall. 498, Fed. Cas. No. 15,336; Hart well v. Root, 19 Johns. (N. Y.) 345, 10 Am. Dec. 232; Com. v. Stow, 1 Mass. 54 ; 10 Bast 211; 8 Campb. 10 ; 8 B. & P. 302 ; 1 Greenl. By. § 80.
Immaterial and impertinent averments (which are synonymous, 5 D. & R. 209) are those which need not be made, and, if made, need not be proved. 'The allegation of de ceit in the seller of goods in an action on the warranty is such an averment; 2 East 448; Penton v. Holland, 17 Johns. (N. Y.) 92, 8 Am. Dec. 369.
Unnecessary averments are statements of matters which need not be alleged, but which, if alleged, must be proved. Carth. 200.
General averments are almost always of the same form. The most common form of making particular averments is in express and direct words, for example: And the par ty avers, or in fact saitle, or although, or be cause, or with this that, or being, etc. But they need not be in these words; for any words which necessarily imply the matter intended to be averred are sufficient.