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Leonid Kulagin
Leonid Kulagin

Averment


The decisions of this Court require that the averment of jurisdiction shall be positive and that the declaration shall state expressly the fact on which jurisdiction depends. It is not sufficient that jurisdiction may be inferred argumentatively from its averments.




averment



In this case Bombay High court stated that In the matter of an admiralty action to arrest a ship, it cannot be mere averments that would support the action. It must be supported by documentary evidence to show that the goods were in fact shipped to maintain action against the vessel and made the following observation-


(b) Defenses; Form of Denials. A party shall state in short and plain terms the facts constituting his defenses to each cause of action asserted and shall admit or deny the averments upon which the adverse party relies. If he is without knowledge or information sufficient to form a belief as to the truth of an averment, he shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to controvert all the averments of the preceding pleading, he may make his denials as specific denials of designated averments or paragraphs, or he may generally deny all the averments except such designated averments or paragraphs as he expressly admits; but, when he does so intend to controvert all its averments, including averments of the grounds upon which the court's jurisdiction depends, he may do so by general denial subject to the obligations set forth in Rule 11.


This Rule 8(b) is the same as the Federal Rule. It abolishes the "general denial" unless the pleader can controvert every allegation of the complaint, including the jurisdictional allegations. Every allegation must be specifically admitted or denied. Failure to deny constitutes admission. An answer neither admitting nor denying but "demanding proof thereof" is insufficient. The pleader must deny in good faith all parts of an averment not admitted.


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. Williamson v. Allison, 2 East, 446; Panton v. Holland, 17 Johns. (N.Y.) 92, 8 Am.Dec. 369.


In both examples, the word averment is used to describe a statement or declaration that is being made. The first example shows someone making a positive declaration of their innocence, while the second example shows how a statement of innocence was not believed by others.


B. DEFENSES; FORM OF DENIALS. A party shall state in short and plain terms his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If he is without knowledge or information sufficient to form a belief as to the truth of an averment, he shall so state and this statement has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to controvert all the averments of the preceding pleading, he may make his denials as specific denials of designated averments or paragraphs or he may generally deny all the averments except such designated averments or paragraphs as he expressly admits; but, when he does so intend to controvert all its averments, he may do so by general denial subject to the obligations set forth in Section 2011 of this title.


In response to this averment the answer admits that the car belonged to the defendant and was being operated by Skeen Thorne but neither admits or denies that Thorne was an agent of the defendant and that he was acting in the course of his employment, unless such denial is construed to be within a general denial placed at the close of the answer. The plaintiff contends that this does not meet the requirements of Rule 8(b), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.


In a study of Rule 8(b) I have concluded that a general denial is intended to cover whole averments or paragraphs and that if it is intended to admit a part of an averment or a qualification of an averment, the pleader is then required to specify so much as he admits and specifically deny the remainder. I think any other construction would tend to create confusion and misunderstandings.


By the wording of the rule there is permitted a general denial of all averments except such designated averments or paragraphs as are expressly admitted. It is not contemplated that a pleader may admit a portion of an averment or paragraph and by general denial controvert the truth of the other portion of the averment or paragraph. Such situation is met by the rule itself where it provides that if the pleader denies only a part or qualification of an averment, he shall specify so much as is true and material and shall deny only the remainder.


Applying this construction of the rule, it appears that the defendant has admitted a portion of this averment in paragraph 3 in that he says that it was the defendant's car that struck the deceased and that Skeen Thorne was driving same, but the other portion of plaintiff's averment on this question is not specifically denied or admitted.


It is my judgment that the general denial does not work as a denial of this portion of this averment and that the defendant should deny or admit all the same specifically, or if he is without knowledge or information, he should so state, as he is permitted to do under the rule.


AVERMENT, pleading. Comes from the Latin verificare, or the French averrer,and signifies a positive statement of facts in opposition to argument orinference. Cowp. 683, 684. 2. Lord Coke says averments are two-fold, namely, general andparticular. A general averment is that which is at the conclusion of anoffer to make good or prove whole pleas containing new affirmative matter,but this sort of averment only applies to pleas, replications, or subsequentpleadings for counts and a vowries which are in the nature of counts, neednot be averred, the form of such averment being et hoc paratus. estverificare. 3. Particular averments are assertions of the truth of particularfacts, 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 aparticular averment the party merely protests and avows the truth of thefact or facts averred, but in general averments he makes an offer to proveand make good by evidence what he asserts. 4. Averments were formerly divided into immaterial and impertinent; butthese terms are now treated as synonymous. 3 D. & R. 209. A better divisionmay be made of immaterial or impertinent averments, which are those whichneed not be stated, and, if stated, need not be proved; and unnecessaryaverments, which consist of matters which need not be alleged, but ifalleged, must be proved. For example, in an action of assumpsit, upon awarranty on the sale of goods, allegation of deceit on the part of theseller is impertinent, and need not be proved. 2 East, 446; 17 John. 92. Butif in an action by a lessor against his tenant, for negligently keeping hisfire, a demise for seven years be alleged, and the proof be a lease at willonly, it will be a fatal variance; for though an allegation of tenancygenerally 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 avermentsare always in the same form. The most common form of making particularaverments is in express and direct words, for example: And the party aversor 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 implythe 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; 1Saund. 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); 3Bouv. Inst. n. 2835-40.


Respondent, Time Warner Inc. ("Time Warner"), by its attorneys, Cravath, Swaine & Moore and Paul, Weiss, Rifkind, Wharton & Garrison, as and for its Answer to the Petition to Enforce Civil Investigative Demands (the "Petition") answers the averments of the Petition as follows:


In a petition to recover from a city assessments for street watering paid under protest, an averment, that the lot opposite the petitioner's estate is unoccupied, belongs to two owners and is divided in the middle by a fence, is not equivalent to an averment that the petitioner's estate is not an occupied estate in the central portion of a large city.


A petition in the nature of a bill in equity to recover from a city assessments for street watering paid under protest, even if it can be amended in such a way as to show that the remedy is a proper one, must be dismissed on demurrer if it contains no averments showing the assessments to have been illegal.


SHELDON, J. The first of these actions appears to be a petition to recover back the amount of assessments for street watering, assessed upon the petitioner's estate in Haverhill for the successive years from 1897 to 1904, inclusive, by the boards of aldermen of Haverhill for those respective years, upon the averments that he had protested in each of these years against sprinkling the street in front of his estate, that in each year he petitioned the board of aldermen for an abatement but that generally his petitions were referred to the files without having been read, and that he was not notified by the respective boards 041b061a72


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