averment
n . 断言,主张,申辩
断言,主张,申辩
averment n 1 :
a declaration that is made emphatically (
as if no supporting evidence were necessary ) [
synonym : {
assertion },
{
averment }, {
asseveration }]
Averment \
A *
ver "
ment \,
n . [
Cf .
OF .
averement ,
LL .
averamentum .
See {
Aver },
v .
t .]
1 .
The act of averring ,
or that which is averred ;
affirmation ;
positive assertion .
[
1913 Webster ]
Signally has this averment received illustration in the course of recent events . --
I .
Taylor .
[
1913 Webster ]
2 .
Verification ;
establishment by evidence . --
Bacon .
[
1913 Webster ]
3 . (
Law )
A positive statement of facts ;
an allegation ;
an offer to justify or prove what is alleged .
[
1913 Webster ]
Note :
In any stage of pleadings ,
when either party advances new matter ,
he avers it to be true ,
by using this form of words : "
and this he is ready to verify ."
This was formerly called an averment .
It modern pleading ,
it is termed a verification . --
Blackstone .
[
1913 Webster ]
Avernal 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 .
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