AVALUM. By this word is understood the written engagement of a third person to guaranty and to become security that a bill of exchange shall be paid when due.

AVERAGE. A term used in commerce to signify a contribution made by the owners of the ship, freight and goods, on board, in proportion to their respective interests, towards any particular loss or expense sustained for the general safety of the ship and cargo³; to the end that the particular loser may not be a greater sufferer than the owner of the ship and the other owners of goods on board. Marsh⁴. Ins. B. 1, c. 12, s. 7; Code de Com. art. 397; 2 Hov. Supp. to Ves. jr. 407; Poth. Aver². art. Prel.

2. Average is called general or gross average, because it falls generally upon the whole or gross amount of the ship, freight and cargo; and also to distinguish it from what is often though improperly⁵ termed particular average, but which in truth means a particular or partial, and not a general loss; or has no affinity⁶ to average properly so called. Besides these there are other small charges, called petty or accustomed averages; such as pilotage, towage, light-money, beaconage, anchorage, bridge toll⁷, quarantine, river charges, signals, instructions, castle money, pier⁸ money, digging the ship out of the ice, and the like.

3. A contribution upon general average can only be claimed in cases where, upon as much deliberate on and consultation⁹ between the captain and his officers as the occasion will admit of, it appears that the sacrifice at the time it was made, was absolutely and indispensably necessary for the preservation¹⁰ of the ship and cargo. To entitle the owner of the goods to an average contribution, the loss must evidently conduce to the preservation of the ship and the rest of the cargo; and it must appear that the ship and the rest of the cargo were in fact saved. Show. Ca. Parl. 20. See generally Code de Com. tit. 11 and 12; Park, Ins. c. 6; Marsh. Ins. B. 1, c. 12, s. 7 4 Mass. 548; 6 Mass. 125; 8 Mass. 467; 1 Caines' R. 196; 4 Dall. 459; 2 Binn. 547 4 Binn. 513; 2 Serg. & Rawle, 237, in note; 2 Serg. & Rawle, 229 3 Johns. Cas. 178; 1 Caines' R. 43; 2 Caines' R. 263; Id. 274; 8 Johns. R . 237, 2d edit 9 Johns. R. 9; 11 Johns. R 315 1 Caines' R. 573; 7 Johns R. 412; Wesk. Ins. tit. Average; 2 Barn. & Crest¹¹. 811 1 Rob. Adlm. Rep. 293; 2 New Rep. 378 18 Ves. 187; Lex. Mer. Armer. ch. 9; Bac Abr. Merchant, F; Vin. Abr. Contribution and' Average; Stev. on Av.; Ben. on Av.

AVERIA. Cattle. This word, in its most enlarged signification is used to include horses of the plough, oxen and cattle. Cunn. Dict. h. t.

AVERIIS CAPTIS IN WlTHERNAM, Eng. law. The name of a writ¹ which lies in favor of a man whose cattle have been unlawfully taken by another, and driven out of the county where they were taken, so that they cannot be replevied.

2. This writ issues against the wrong doer to take his cattle to the plaintiff's use. Reg. of Writs¹², 82.

AVERMENT, pleading. Comes from the Latin verificare, or the French averrer, and signifies a positive statement of facts in opposition¹³ 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 averred¹⁴, 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 tenant¹⁵ 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 avows¹⁶ 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 formerly¹⁷ 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 alleged¹⁸, but if alleged, must be proved. For example, in an action of assumpsit, upon a warranty¹⁹ 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 negligently²⁰ keeping his fire, a demise²¹ for seven years be alleged, and the proof be a lease at will only, it will be a fatal variance²²; for though an allegation of tenancy generally would have been sufficient, yet having unnecessarily qualified²³ 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 avers²⁴ 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. PI. 308; Arch. Civ. PI. 163; Doct. PI. 120; 1 Lilly's Reg. 209 United States Dig. Pleading II (c); 3 Bouv. Inst. n. 2835-40.