IMMATERIAL AVERMEN
(bouvier) | IMMATERIAL AVERMENT. One alleging with needless particularity or unnecessary
circumstances, what is material and requisite, and which, properly, might
have been stated more generally, or without such circumstances or
particulars; or, in other words, it, is a statement of unnecessary
particulars, in connexion with, and as descriptive of, what is material.
Gould on Pl. c. 3, Sec. 186.
2. It is highly improper to introduce immaterial averments, because,
when they are made, they must be proved; as, if, a plaintiff declare for
rent on a demise which is described as reserving a certain annual rent,
payable "by four even and equal quarterly payments," &c.; and on the trial
it appears that there was no stipulation with regard to the time or times of
payment of the rents, the plaintiff cannot recover. The averment as to the
time, though it need not have been made, yet it must be proved, and the
plaintiff having failed in this, he cannot recover; as there is a variance
between the contract declared upon and the contract proved. Dougl. 665.
3. But when the immaterial averment is such that it may be struck out
of the declaration, without striking out at the same time the cause of
action, and when there is no variance between the contract as, laid in the
declaration and that proved, immaterial averments then need not be proved.
Gould on Pl. C. 3, Sec. 188.
|