A V E 
Harbours, creeks, or rivers, one third of which is charged 
to the (hip, and two thirds to the cargo. 
Average is more particlarly ufed for a certain contri¬ 
bution that merchants make proportionably to their lofTes, 
who have had their goods caff into the fea in the time of 
a tempeft. It alfo ftgnifies a fmall duty which thofe mer¬ 
chants, who fend goods in another man’s (hip, pay to tire 
mailer for his care of them over and above the freight. 
Hence it is expreffed in the bills of lading, paying fo much 
freight for the laid goods, with primage and average ac- 
cuftomed. But if the mafter takes in more goods than he 
ought, without leave of the owners and freighters, and a 
florm arifes at fea, and part of the freighter’s goods are 
thrown overboard, the remaining goods are not fubject 
to average.; but the mafter (hall make good the lofs 
out of his own eftate : and, if in fuch cafe the (hip’s tackle 
be loft by dorm, the fame is not within the average. 
,If goods are call overboard before half the voyage is per¬ 
formed, they are to be eftimated at the price they coft : 
but if they be caft out after, then at the price as the reft 
are fold at the port of arrival. Leg. Oleron. 
Average of Corn-fields, the ftubble or remainder 
of draw and grafs left in corn-fields after the harvefc is 
carried away. In Kent it is called the grattcn, and in other 
parts the rougkings, &c. 
AU'ERBACH, a town of Germany, in the circle of 
Upper Saxony, fourteen miles fouth of Zwickau, and 
lixty weft-fouth-wert of Drefden. Lat 50. 26. N. Ion. 30. 
12. E. Ferro. 
A'VER-corn, is a referved rent in corn, paid by far¬ 
mers and tenants to religious houfes ; and dignifies, by 
Somner, corn drawn to the lord’s granary, by the work¬ 
ing cattle of the tenant. It is fuppofed that this cuftom 
was owing to the Saxon cyriac Jfceat, a meafure of corn 
brought to the pried annually on St. Martin’s day, as an 
oblation for the firft-fruits of the earth : under which title 
the religious had corn-rent paid yearly ; as appears by an 
inquifition of the eftate of the abbey of Glaftonbury, A. D. 
1201. 
Aver-land, feems to have been fuch lands as the 
tenants did plough and manure, ‘cum averiis fuis,’ for 
the proper ufe of a monaftery, or the lords of the foil. 
Aver-penny, or Average-penny, Money paid to¬ 
wards the king’s averages or carriages, or to be freed there¬ 
of. Rajlal. 
Aver-silver, A cuftom or rent formerly fo called. 
AVERDUPOI S. See Avoirdupois. 
AVE'RlA,yi [Spelman deduces the word from ouvrer , 
Fr. to work, as if chiefly working-cattle ; though it feems 
more proably from avoir, to have or poffefs : the word 
fometimes including all perfonal eftate, as catalla did all 
goods and chattels.] Cattle. This word is ufed for oxen 
or horfes of the plough ; and in a general fenfe any cattle. 
Averia Elongata. See Elongata. 
AVE'RIIS capis in Withernam, a writ for the 
taking of cattle to his life, who hath cattle unlawfully 
diftrained by another, and driven out of the county where 
they were taken, fo that they cannot be replevied by the 
fheriff. Reg. 0 rig. 82. See Distress. 
AVER'MEN.T,./. Eftablilhment of any thing. Inlaw, 
it is an offer of the defendant to make good or juftify an 
exception pleaded by him in abatement or bar of the plain¬ 
tiff's action ? and it ftgnifies the add, as well as the offer, 
of juftifying the exception ; and not only the form, but 
the matter thereof. Co. Lit. 362. Averment is either ge¬ 
neral, or particular; general, which concludes every plea, 
See. containing matter affirmative, and ought to be with 
thefe words, ‘ and this he is ready to verify, &c.’ Parti¬ 
cular averment is when the life of tenant for life, or of 
tenant in tail, &c. is averred. With refpett to particular 
averments, the following quotations may ferve as examples. 
He that claims eftate from tenant for life, or in tail, or 
from parfon of a church, ought to aver his life. Br. FJlate , 
pi. 18. Where one thing is to be done in conlideration of 
another, on contracts, &c. there mult be an averment of 
Vol. II. No. 88. 
performance ; but, where there is promife againft premile, 
there needs no averment; for each party hath his adtion, 
1 Lev. 87. The ufe of averment being to afeertain what 
is alleged doubtfully, deeds may fometimes be made good 
by averment, where a perfon is not certainly named ; but 
when the deed itfelf is void for uncertainty, it cannot be 
made good by averment. 5 Rep. 155. Averment cannot 
be made againft a record , which imports in itfelf an un¬ 
controvertible verity. Co. Lit. 26. Jenk. 232. 
Averment lies not againft the proceedings of a court of 
record. 2 Hawk. P. C. c. 1. § 14. Nor (hall it be admitted 
againft a will concerning lands. 5 Rep. 68. And an aver¬ 
ment (hall not be allowed where the intent of the teftator 
cannot be colledled out of the w-ords of the will. 4 Rep. 44. 
One may not aver a thing contrary to the condition of an 
obligation, which is (uppofed to be made upon good deli¬ 
beration, and before witneffes, and therefore not to be 
contradifled by a bare averment. 1 Lill.Abr. 156. 
An averment of a wicked and unlawful conftderation 
of giving a bond, may well be pleaded, though it doth 
not appear on the face of the deed : and any thing which 
(hews an oligation to be void may well be averred, altho’ 
it doth not appear on the face of the bond. Adjudged on 
demurrer, after two arguments in the cafe of Collins and 
Blantern, C.B. Eajier, 7 Geo. III. 2 WUfon, 347. 
If an heir is fued on the bond of his anceftor, it muff 
be averred that the heirs of the obligor were exprefsly 
bound. 2 Sound. 136. In declaring, you (hew that the obli¬ 
gor bound his heirs. Another conftderation than that 
mentioned in a deed, may be averred, where it is not re¬ 
pugnant or contrary to the deed. Dyer 146. But a confi- 
deration may not be averred, that is againft a particular 
exprefs conftderation ; nor may averment be againft a con- 
fideration mentioned in the deed, that there was no con¬ 
lideration given. 1 Rep, 176. %Rcp. 155. If an eftate is 
made to a woman that hath a luilband, by fine or deed, 
for her life ; in this cafe it may be averred to be made to 
her for her jointure, although there be another ufe or con- 
deration expreffed. 4 Rep. 4. Averment may be of ufe 
upon any fine, or common recovery ; though not of any 
other ufe than what is expreffed in it : it may be received 
to reconcile a fine, and the indenture to lead the ufes. 
Dyer 211. tBulJi. 233. 1 And. 312. 
If one has two manors known by the name of W. and 
levies a fine or grants an annuity out of his manor of W. 
he (hall by averment afeertain which of them it was; per 
cur. 6 Mod. 235. Cha. Rep. 138. If a piece of ground was 
anciently called by one name, and of late is called by ano¬ 
ther, and is granted to me by this new name ; an averment 
may be taken that it is all one thing, and it will make it 
good. Dyer37, 4.4.. No averment lies againft any returns 
of writs, that are definitive to the trial of the thing re¬ 
turned : as the return of a (lieriff upon his w rits, See. 
But it may be where fuch are not definitive; and againft 
certificates upon commiffions out of any court : alfo againft 
the returns of bailiff's of franchifes, fo that the lords be 
not prejudiced by it. Dyer 348. SR/p. 121. 2 Cro. 13. 
A lpecial averment mull be made upon the pleading of 
a general pardon, for the party to bring himfelf within 
the pardon. Hob. 67. A perfon may aver he is not the 
fame perfon on appeal of death in favour of life. 1 Nr If. 
Abr. 305. Where a man is to take a benefit by an aft of 
parliament, there in pleading he mull aver, that he is not 
a perfon excepted ; but where he claims no benefit by it, 
but only to keep that which he had before, in fuch cafe it 
is not neceff'ary to make fuch averment. Plow. Coot. 87,48S. 
Pleas merely in the negative, (hall not be.averred, be- 
caufe they cannot be proved : nor (hall what is againft 
prefumption of law, or any thing apparent to the court. 
Co. Lit. 362, 373. By flat. 4and 5 Ann. c. 16. no exception 
or advantage (hall be taken upon a demurrer, for want of 
averment of hoc paratus cjl, ( 3 c. except the fame be fpe- 
cially fet down for caufe of demurrer. 
AVER'NUS, a lake of Campania in Italy, near Baiae, 
famous among the ancients for its poilbnous qualities. It 
7 is 
