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214.-4 Bac. Abr. 362.

6 Co. 31,

case.

Ch. 177. during life to do it; and his tender will save the bond; for Art. 9. C shall be intended in B's influence.

§ 8. When a penalty is incurred for the non-payment of Hob.82, 133. rent, even on a day named, there must be an actual demand -6 Com. D. of the rent made, and averred, if sued for, or the penalty is

not incurred.

§ 9. In this case, it was held, that if the deft. be bound to Boothey's deliver the plt. a bond or goods, or to do other transitory

act in its nature, though a place be named, and no time is Co. Lit. 208. mentioned, the deft. is bound to deliver presently; that is, in

a reasonable time, and without request ; so none need be aver

red in pleading in such a case. Co. Lit. 209. § 10. But if A be bound to reconvey land to the grantor,

or to him and a stranger, A has during life to do it, unless hastened by request; but if to convey to a stranger, he must do it in convenient time; as he undertakes to do an act to a stranger.

§ 11. According to this case of Boothey, the obligor has during life to perform, but in one case, where no time is mentioned for performance; and that is where he is to do an act local in its nature, and the concurrence of the obligee is necessary to the doing of the act; and in this case the obligee may, by request, hasten the doing of the act, except when he has no concern in it; for the act cannot be done,

unless the parties meet at the place. 3 Salk. 303, § 12. Where a request is to do a collateral thing, it must Fitzhugh r. be averred. 2 Ld. Ray. 1094; Ch. 140, a. 6. Dennington.

§ 13. That which will come most properly on the other Hob. 71,124,

side, need not be averred in a declaration or plea; nor is 88.

any averment necessary in a declaration, where there are mutual remedies.

§ 14. An averment is vain, where the law judges the contrary. Negative pleas ought not to be averred; for a negative plea cannot be proved; but affirmative pleas must be

averred. Salk. 515, § 15. Testatum existet is no averment, but only recital. Woodward

What 1. Cliff.

not be averred. may or may

§ 16. Some presumptions of law are so violent, though Hob. 297.

false, a man cannot aver against them; as the law presumes

every layman liable to tithes, and will not admit a prescrip4 Co. 71. tion to the contrary ; but there is a general and settled rule,

that a presumption stands only till the contrary is proved ; now it is hardly conceivable that a presumption is so strong, as not in any event, to be outweighed by positive and clear

proof. 4 Wood's If an anuuity be granted for counsel and aid to be had, Con. 159.

and it is not said in what matter, yet it may be averred, that

3 Salk. 52.

/

case.

he who is to give it is a physician or a lawyer, and it was Ch. 177. granted for his aid, and counsel in his profession : so, if the Art. 9. grantee be learned in two sciences, it may be averred, the grant was for one in certain.

§ 17. If a consideration be expressed in a deed, there can 5 Wood's be no averment, allowed that there was none (but by way Con. 463.

Gil. Cases, of fraud) for that would be against the deed; but if no con

287, 388. sideration be mentioned in the deed, or only divers good causes and considerations, there, an averment of a good consideration given, shall be received; for this is an averment that may stand with the deed, and the deed estops nothing consistent with it.

§ 18. So, in a common recovery a use may be averred; 5 Co. 37, 4 Co. 1 to 5, where an estate, on condition, may be averred Vernon's to be a jointure, before stated.

What executions may be averred, though not returned; see Return.

§ 19. If one named in an indenture, do not seal it, he must 2 Stra. 1146, be excluded by an averment; otherwise intended, he exe- Vernon & al. cuted it.

v. Jeferys. § 20. If in a recovery there be a deed to lead the uses, 2 Salk. 676, and parol averment, that the recovery was had to other uses, Tregany v.

Fletcher. cannot be admitted; but such an averment may be made against the use in a subsequent deed or declaration, and the uses first mentioned, can, in pleading, only be confessed and avoided, and the uses in the after deed may be traversed.

§ 21. There can be no averment against the test of a writ, 3 Salk. 53, when it is in support of justice.

Mason v. $ 22. This question as to what may or may not be aver- March. red; as also, the question, what ought or ought not to be averred, occasionally occur in all parts of pleadings, and have already been examined under different heads; the first, largely in another form, that is, under the head of Evidence, what may or may not be proved, especially by parol evidence ; for what may be properly averred, may be proved; and what may be properly proved, may and ought usually to be averred; so numerous are the cases in what the plt., to ground his action, must aver he has performed some condition or matter, on his part; or has tendered performance; or has been ready to perform: see Rules and Cases in Declarations, Assumpsit, Considerations, Covenants, &c. So, many are the cases in what the plt., to sustain his action, must aver a demand, or a request made on the deft., specially; see the same heads : also, Notice and Requests, next articles. Also, many are the cases in which the plt., to ground his action, and recover for doing a thing, as convey, ing property, performing services, &c., he must aver he did

VOL. VI.

3

Jon. 328.-5

Ch. 177. the thing at the deft's. request; doing it at his request being Art. 9. the consideration of his promise often, as in scores of cases

in assumpsit ; see Assumpsit, said rules and cases and considerations.

§ 23. A devises that if his goods be not sufficient to pay Com.D. 346. his debts, his land shall be sold. He who avows under the

vendee, must aver precisely that the personal estate was not sufficient, for this insufficiency of the personal estate, is a condition precedent to selling the land, and so must be aver

red and proved. 4 Mass. R.

§ 24. Condition precedent in the sale of goods, though deliverHussey & al. ed; as if A contract to sell certain goods to B, on a credit

, v. Thornton with the condition, B shall find a surety for the price; and & al. A deliver the goods without the surety being furnished, but

declares he should not consider them as sold until the security should be given. Held, the property remained in A; the surety is a condition precedent, to change the property, and the vendee's agent takes them on these terms; but if the vendee had sold them while in their possession, bona fide, and without notice to the buyer, his title had been good: so, if their real creditor had attached them: so, a sale of goods as well as of lands may be void as to the immediate vendee, but valid as to his vendees, bona fide, and without notice.

§ 25. If I promise 20s. to A, for his going to Rome with Com.D. 347.

me, he must aver his going, &c., for this is a condition precedent. So, for services for a year, $100 to be paid, the

performance of them is a like condition, and must be aver2 Mod. 35, red. But the words, paying and performing, in a lease, make

a covenant and not a condition precedent, the performance whereof must be averred.

$ 26. If one be bound to save another harmless against a particular thing, he must aver, and shew how he has done it : but if to save harmless generally, not damnified will do. But how is form, after verdict, and well enough, though not shewn how ; for if one states, and proves he has done a business or act, this is the substance, and the particular mode and manner

of doing it is the form. 2 Burr. 832, § 27. What is a sufficient averment of a fact.

fact. Being sur834, Rex v. Boyall.

veyors of the highways," is a sufficient averment they are surveyors ; as in an indictment, it was alleged that A and B being surveyors, &c., appointed a day for working there, and notified the deft., &c. He objected that A and B were not sufficiently alleged or averred to be surveyors, &c. : it is only that they being surveyors. But the court held, it was a sufficient averment; and cited 2 Mod. Reports, 128, Rex d. Moore; when it was held positive enough in an indictment to allege “being above such an age.”

7 Co. 10.-5

91, 93.

12 Mod. 406.

5 Com. D. 352.

$ 28. So, held, that pleading, one Saunders having been le- CH. 177. gally possessed, as tenant at will to B, is a sufficient aver Art. 9. ment ihat A was tenant at will, &c., though the whole merits of the plea depended on A's being tenant at will, &c.; " for Willes, 131,

Eaton «. pleas must be construed according to a common intent; and

Southby. a man must strain indeed, to say this plea does not plainly intend that G. Saunders was tenant at will." The word as tenant at will affords no objection.

§ 29. In this action the declaration in trespass for an as- 2 Mass. R. sault and battery. Held, good and well avered, though it 358, Coffin v.

Coffin. was, for that whereas, &c. by way of recital. This was a case fully considered by the whole court; and in which a contrary decision, on this point, in 1 Mass. R. was overruled.

§ 30. When a lease is made by tenant for life, any one 1 Saun. 230. claiming under it, ought to aver he is alive; but quere, if by tenant in tail.

§ 31. General estates in fee simple may be averred gener- Thursbye o. ally; but the commencement of estates in tail, and other par. Lit. 3050_2 ticular estates, must be averred and shewn, unless where Esp. 169. alleged only by way of inducement: so, the life of tenant in tail, or for life, must be averred. § 32. How the plt . avers performance. Case for not deliv- 1 East, 203,

Rawson &al. ering malt, the deft. had engaged to deliver on request, at

v.Johnson. a certain price. Held, sufficient for the plt. in his declara- Same, 2 Bos. tion, to aver such request ; and that he was ready to receive & P. 447, the malt, and to pay for it according to the terms of the sale, Waterhouse but the deft. refused to deliver it, without averring any actual tender of the price.

What is necessarily implied, need not be averred. Nor Amer. Prec. what may be fairly intended ; and either may be traversed; for ch. 7:

Bac. 81,100. what is necessarily implied or intended, is as if expressed in pleading

§ 33. Not any parts in pleadings are more material to be attended to than these ; as the question so repeatedly arises as to what, from matters expressly stated or averred, may be necessarily implied, fairly intended, or reasonably presumed ;

2 Salk. 629, but mere supposal is not traversable; but “whatever is

Parker. necessarily understood, intended, or implied, is traversable as 4 Bac. 81. much as if it were expressly stated or averred.” As when one pleads he is seized in fee of such a close, it is necessarily intended sole seized, and may be traversed as a sole seizin, as much as if so averred.

§ 34. So, a husband seized in right of his wife, avows for 2 Lev. 88.rent in arrear; this necessarily implies she is alive ; and her 362. being alive may be denied, as it might be if averred.

t. Skinner.

Gilbert u.

Liford's

case, 11 Co.
52, &c.

1 Salk.325.

Lutw. 1172. seized.

5 Com. D.
515.

Deblois.

Ch. 177. § 35. If I grant trees in my land to A, he has an implied
Art. 9. power to come with carts and teams, and take them away;

and in pleading, it may be averred, or stated by legal con-
struction, as much, as if expressly given in the grant.

§ 36. The plea was that A, was siezed ; that he died seized;

it was intended, A died seized, though not averred who died Stra. 394,

$ 37. This was assumpsit on a note, stated to be made Carbonel' o. November 2, to pay 31st. December next ; was intended next Davis.

after the date of the note, not next after the action brought. Cro. El. 819, § 38. If a jury, by their verdict, find a bargain and sale of Maynard.— goods, a consideration shall be intended, and may be aver9 C0.51,B. red in pleading, in giving the contract a legal construction ;

and so if the jury find a retainer of a deputy, it shall be intended by deed, and may be so stated or averred, as the

true construction. 1 L. Ray. 111; consideration presumed. Stra. 512,

So, if they find the lessee by indenture made a covenant to Cuatsworth: pay the rent, it shall be intended he scaled ; and in pleading,

it may be so averred, for one to make his deed, is in legal

construction to seal it. Taylor v. So, to state, or aver one made his note of hand, imports

he signed it; and in a declaration in such case it is a good

averment. Cro. El. 742, $39. Joint-tenant and tenant in common has partition on 759, Moore & the 31 H. VIII. 1. Held, his general writ on the statute is

sufficient, if concluding against the form of the statute, without averring or reciting the case specially, so as to bring it

within the act: for the framing of the writ is left to the clerks Co.L. 175;, in chaucery, and must be according to their form;

but a parcener, whose writ is at common law, and her sister's grantee, whose writ is the statute, cannot join.

§ 40. If one avers what cannot be by law, his averment

is of no avail; as if he aver land is appurtenant to a mesHob. 78.—1 suage, as this cannot be by law. Nor need he aver what

appears to the court; nor matter surmised ex abundanti; nor matter in defeasance of the action ; for this properly comes from the other side.

§ 41. Averments of pleas. Averments of pleas in contradistinction to concluding to the country, or offering an issue, is a part of averments that deserves the most attention. Hardly any question more frequently arises in pleadings, than the one, whether the party ought to conclude his plea, replication, rejoinder, &c. to the country, or with this averment; to wit, and this he is ready to verify;" or " et hoc paratus verificare.” Hundreds of cases have already occurred in this work in which this question has arisen, and in which either the conclusion to the country, or with this averment,

al.v.Onslow.

3 Bac. 211.

5 Com. D.
363.-P.
Com. 31.

Lev. 18.

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