TERM. See Writ of Error 2.
A transfer or charge by an insolvent debtor, free from actual
fraudulent intent as to creditors, preferring a particular debt
is not, as to debts contracted after its recordation, a preference
contrary to section 2, chapter 74 Code 1899. Feely v. Bryan, 586.
1. The principle of the assumption of known risks and dangers
is applicable to minors, when there is specific and positive
evidence showing that the risk in question was comprehended.
Williams v. Coal & Coke Co., 85.
A dark tunnel, leading through a hill to a coal mine in an-
other hill back of it, used by the owner of the mine for haul-
ing coal from it, by means of an electric motor, and also by
the miners in going to and returning from their work in the
mine, with the knowledge and consent of the owner, and as the
usual and customary way of ingress and egress, is a place in
respect to which the owner of the mine owes to his employees
the duty of ordinary care for their safety when so using it.
Id.
A person so entering upon the premises of another, however,
does so subject to the doctrine, volenti non fit injuria, and
takes upon himself the risk of all dangers attendant thereon
of which he has knowledge. Williams v. Coal & Coke Co. 85.
In an action of trespass for cutting trees, and the deed of the
plaintiff excepts certain tracts within the outside boundary of
the land, the plaintiff must show that the trees cut were not
on the excepted land. Buck v. Newberry, 681.
In an action of trespass for cutting trees, under a plea of
the statute of limitations, the defendant must show the date of
such trespass, and where part of the cutting of trees was
more, and part less, than five years before suit, he must show
what part is barred by the statute. Id.
It is a rule of law that a party voluntarily going to trial does
so at his peril; and he cannot have a new trial merely to give
him an opportunity of impeaching the testimony of a witness of
which he was apprised, or could have been apprised beforehand,
and of the very purpose for which the witness was to be called.
Warehouse Co. v. Pridemore, 451.
1. A trustee filed his bill and amended bill to remove an alleged
cloud upon the title to trust property; to ascertain and fix the
amount of the trust debt, which is controverted by the debtors;
and to obtain a decree to sell the property for the amount of the
debt, when so ascertained and fixed. The court decreed a can-
cellation of the tax deed, alleged to be a cloud upon the title,
ascertained and fixed the amount of the trust debt, and decreed
that the trustee shall recover of the debtor the amount so ascer-
tained and fixed by the court, and that, in default of payment,
within the time prescribed, the trustee as special commissioner,
shall sell the trust property. The administrator of the deceased
trust creditor is not a party to the suit, although it appears
therein that the trust creditor had died intestate, and that her
administrator had been appointed and qualified as such before
the institution of the suit. Held: That the decree is erroneous,
because the same was made and entered in the absnce of a
necessary party, and because the recovery in the name of the
trustee is unwarranted. Bryan v. McCann, 372.
UNCONSTITUTIONAL ACT. See Ministerial Office 1.
UNLAWFUL DETAINER. See Summons 1.
1. An indictment which charges that the defendant "did at and
in a certain room in the hotel of Lahew Nutter, near the town
of Spencer, in said county, said room then and there being a
public place and a place of public resort, bet and play, at a
certain game played with cards which said game is commonly
called and known as the game of draw poker," etc., is good as an
indictment for playing at a public place, but is not good as an
indictment for playing at a hotel or tavern. State v. King, 46.
If the prosecutor fails to show that the room was a public
place or a place of public resort, he cannot have such indict-
ment held good as charging the unlawful gaming to have been
done at a hotel or tavern. Id. 47.
In such case, the jurisdiction to enjoin rests upon the inher-
ent power of the court to maintain its jurisdiction to give full
and complete relief between the parties to the main cause of
action by preventing either of them from interfering with or
obstructing it by proceedings in pais or in a forum other than
the one having jurisdiction, and also upon the lack of any
other remedy by which the plaintiff can prevent the defendant
from fixing upon him inevitable liability to an innocent third
party for a demand which as between the original parties, may
be resisted and defeated on the ground of utter invalidity.
Rorer v. Building and Loan Ass'n, 255.
When usurious payments of interest are made upon a debt
the excess of interest so paid above the legal rate shall be
applied as partial payments on the principal at the date of
such payments, respectively. Lorentz v. Pinnell, 114.
After usurious interest has been paid the same
covered back either by action at law for money had and
received, or by suit in equity. Id.
In such action or suit the measure of recovery is the resi-
due after crediting a!! payments of usury as partial payments
upon the principal. Id. 115.
The defense of usury is personal to the debtor and, while he
lives, no other person can interpose it except with his consent
and concurrence. Harper v. Building Ass'n, 149.
A purchaser of real estate charged with an usurious debt can-
not defend against the usury, unless the debtor unites with him
in the defense, or his acquiescence in, and consent to, such de-
fense appears in the record. Id.
The common law right of action for the recovery of usurious
interest paid in violation of a statute declaring a contract for
the payment of such interest void, has not been repealed in
this State and such recovery may be had after the debt and
all usurious interest thereon has been fully paid. Id.
As nothing in the statutes of this State relating to the sub-
jects of interest and usury forbids an action by the debtor,
after having fully paid his usurious debt, to recover back the
unlawful interest so paid, the common law right of action
therefor still exists. Id.
Where, under such a contract, after applying all sums
paid by the barrower as partial payments on the debt and al-
lowing interest on the principal sun at the legal rate, it ap-
pears that more than the full amount of the debt with legal
interest has been paid, there may be a decree for the excess,
if ground therefor has been laid in the pleadings in the cause.
Id.
The grantor in a deed of trust, conveying real estate to se-
cure the payment of an usurious debt, may, in a suit in equity
instituted by him to purge the debt of its usury, after having
conveyed the land to a third party by deed with a covenant of
general warranty, enjoin the sale of the property under the
deed of trust pending the suit. Rorer v. Building and Loan
Ass'n, 255.
10. In a suit in equity to enforce a specific lien, to make the de-
fense of usury the defendant may in his answer in general terms
aver that the contract or assurance on which the proceeding is
founded was for the payment of interest at a greater rate than
is allowed by law. Building & Loan Ass'n v. Westfall, 305.
11. In a suit brought directly against the defendant to enforce
the collection of a demand the defense of usury must be pleaded
either by special plea or answer, or it cannot be relied on at the
hearing. Id. 306.
See Contract 1, 6; Building and Loan Ass'n 1, 2.
W. D. C. being ill, and in the expectation of death, gave and
delivered to J. E. C., his brother, a paper in the words and
figures following, to-wit: "Sewell, W. Va., Aug. 26th, 1899.
$1100.00. Eleven hundred dollars. Received of William Clay-
tor for safe keeping. L. C. Claytor." William Claytor men-
tioned in the receipt being said W. D. C. At the time of the
gift and delivery of the receipt the donor said to the donee
that he had a present for him (donee): that donor took the
receipt from his trunk, and said to donee, "Here, I will give
you this; here is a note, I have for $1100.00. I will make you
a present of this; take it, and go and draw the money on it;"
that donor further told donee, not to let anybody else have it,
his (donor's) wife, or anybody else; that he did not want
his wife to have it; that he was going to the hospital and the
way the disease worked on him, he didn't think that he would
get well, and further said, "I will give it (the receipt) to you
before I go, so you will be sure to have it;" that donor was
then the owner of said money, which was at the time in the
care and keeping of L. C. C.; that donor was on that day taken
to the hospital, where he died one month thereafter as a re-
sult of his said illness; that two days before his death, at the
hospital, donor asked another brother, did Ed. (meaning donee)
have the note, (meaning the receipt) which he gave him, and
being told that Ed. had the receipt, donor then said to tell
him (Ed.) to be sure and keep it,
*to go and get
the money on it; that donee kept possession of said receipt
continuously until after the death of donor; and that donor
died without making any change in relation to the gift, and
leaving donee surviving him. Held: That the acts and decla-
rations of the donor constitute a valid gift of said money
causa mortis. Claytor v. Pierson. 167.
A verdict will not be disturbed for want of a proper instruction,
unless it was requested and refused, nor for failure of the trial
court to so modify an improper instruction requested
make it proper and then give it, unless it can be seen that such
failure, for some reason, such as other incomplete instructions
given, may have prejudiced the party requesting it. Werner v.
Calhoun, 247.
VERDICT OF JURY. See Demurrer to Evidence 1.
WAIVER. See Fire Insurance Policy 6.
WARRANTY. See Fire Insurance Policy 3.
If an exception, for allowing or refusing to allow a ques
tion to be answered by a witness. fails to give the answer of the
witness, or what is expected to be proved by him, the appellate
court cannot determine the relevancy, admissibility or value
of the answer, and for that reason the exception will not be
considered by it. Williams v. Coal & Coke Co., 85.
When, pending a writ of error, without fault of a party,
an event occurs rendering it impossible for the appellate
court, if it should decide in favor of the plaintiff, to grant
him substantial relief, the Court will not decide the merits
and give formal judgment, but will dismiss the writ of error,
without awarding costs. Eldon v. Hamrick, 236.
When a writ of error involves a contest as to an office,
and while it is pending the term of the office ends, the writ
of error will be dismissed without decision of the case, and
without judgment as to costs. Id. 237.
Where the record is so imperfect as not to disclose error in a
judgment, it is presumed to be right, and on writ of error will
be affirmed. Cash Register Co. v. Bargain House, 489.
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