Definition of IMMATERIAL AVERMENT


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, 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,
188.

Source: Bouviers Law Dictionary 1856 Edition

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