Ladue v. Ladue

The opinion of the court was delivered by Williams, Ch. J. The declaration is demurred to as not containing a sufficient allegation of the death of John Ladue, it being laid under a videlicet. The allegation is, that the said John Ladue “ died and was deceased afterwards, to wit, at Alburgh aforesaid, on the 20th day of July, 1839.” The allegation of the death of John Ladue was necessary, as the note declared on was payable in one year from his decease, and was a material allegation. When a videlicet is followed by that which is material and necessary to be alleged, it is considered as a direct and positive affirmation, or averment, which is traversable, unless contrary to the preceding matter. It must be proved, when material, as much as if it had been averred without a videlicet. This rule is to be learned from the reported [191] cases, as well as from the most approved treatises on pleading. A videlicet never renders that immaterial which would otherwise be material. The declaration was not faulty in this particular, and no other objections were made to it. The judgment of the county court must therefore be reversed, and judgment rendered for the plaintiff.