Jones v. Degge

Citations

• 84 Va. 685
• 5 S.E. 799
• 1888 Va. LEXIS 129

Syllabus

<p>1. Chancery Practice— Want of replication.—Where defendant has taken depositions as if there had been a replication, the decree shall not be reversed for want of a replication. Code 1873, eh. 177, § 4.</p> <p>2. Witnesses—Competency—Husband and wife.—Where husband and wife-are joint makers of the note sued on, neither is a competent witness, although no relief as against him is prayed for in the bill. The payee is also incompetent.</p> <p>3. Cases Distinguished.—In Hays v. Association, 76 Va., 225, and Farley v. litter, 81 Va., 275, the wife was held to be a competent witness, because the husband was beneficially interested in the suit and was joined as a party with her simply because the “married woman’s act” required it.</p> <p>4. Fraud—Conflicting evidence—Burden of proof—Case at bar.—Burden of proving fraud is on the alleger thereof, and the proof must be clear. In this case the evidence is conflicting, and fails to sustain the charge.</p> <p>5. Inadequacy oe Consideration—A defence, when ?—Inadequate consideration is no defence to an action on a note given for purchase of property, unless the inadequacy be so gross as to lead to the irresistible influence of fraud. Mathews v. Crockett, 82 Va., 394.</p> <p>6. Principal and Surety—Exhaustion of princiapl.—Wheie bill alleges that principal has no estate, and the allegation is not denied, but is proven, it is not error to decree at once against the estate of the surety. Penn v. Ingles, 82 Va., 65.</p>