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In a suit to enforce an alleged trust, a decree suit which may affect real estate, within Chan-
that the title to certain property be vested in a cery Act (Hurd's Rer. şt. 1903, c. 22) 8 3,
new trustee appointed held not within the is- and must be brought in the county where the
sues.-Case v. Collins (Ind. App.) 781.

courthouse is located. --Munger v. Crowe (Ill.)


8 2. Change of venue or place of trial.

*Obligation of judge to amend a change of
Acts of corporation, see "Corporations," $ 5.

venue in a proper case is imperative; but as to

whether the notice of application is sufficient

the judge has a discretion in determining:

Glos v. Garrett (Ill.) 373.
Procuring making of will, see "Wills.” § 3.


Directing verdict in civil actions, see “Trial,"
See "Trade-Marks and Trade-Names,” $ 2.

$ 4.
In civil actions, see “Trial," 11.

In criminal prosecutions, see "Criminal Law,”

$ 12.

Operation and effect as curing defects in plead-
Validity in general of contract with labor union, ings, see “Pleading,” $ 7.
see "Contracts," $ 1.

Review_on appeal or writ of error, see “Appeal

and Error," $ 21.

Courts, see "Courts," § 4; "Removal of Cau-

Creation, see "Wills," $ 5.

See "Tenancy in Common," $ 1.

Protection, see "Constitutional Law," $ 3.
Declarations as evidence, see "Evidence," $ 6.

Limits of jurisdiction, see "Removal of Cau-

See "Municipal Corporations,” 8 5.
ses," 8 2.


See “Master and Servant," $8 3-9.
Between notice and delinquent list on assess-
ment for public improvements, see "Municipal
Corporations," $ 9.

Between pleading and proof in civil actions, see
“Equity,” & 2; "Pleading," $ 6.

See "Municipal Corporations."


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$ 12.


See "Exchange of Property"; "Sales.”

See "Gaming," $ 1.
Election of remedies on breach of contract, see
"Election of Remedies."

Parol or extrinsic evidence of contract for sale
of land, see "Evidence," $ 9.

See "Master and Servant," $ 2.
Purchasers at foreclosure sale, see "Chattel

Mortgages," $ 4.
Sales of trust property, see “Trusts," $ 3.

Specific performance of contract, see “Specific See "Estoppel.”

11. Requisites and validity of contract. of objections to particular acts or proceedings.

Contract for sale of land, legal title to which See "Pleading," $ 7.
is in another, held not void for want of mu- Assignment of errors, see "Appeal and Error,"
tuality.-Kuhn v. Eppstein (Ill.) 145.

Error waived in appellate court, see "Appeal
$ 2. Performance of contract.
*Lease for term of years held

and Error," 26.

an incum- Right to recover benefits, see “Beneficial Asso-
brance within a contract for sale of land. -

Kuhn v. Eppstein (Ill.) 145.

Sufficiency of service in election contest, see

"Elections," $ 2.

Taking private property for public use,

"Eminent Domain," $ 3.
See "Trial," $ 11.

Tender back of goods sold on breach of war-

ranty, see “Sales," $ 4.

Wrongful acts of agent, see “Principal and

Agent," $ 1.
Of criminal prosecutions, see "Criminal Law,"

Of rights or remedies.
$ 1.

Conditions in gas lease, see “Mines and Min-
§ 1. Nature or ject of action.

erals," $ 2.
A proceeding to remove a wing of a court. Forfeiture of railroad right of way, see “Rail-
house to another part of the grounds held a roads," $ 3.

• Point annotated. See syllabus.


Limitations contained in insurance policy, see to show a continued nuisance rather than a
"Insurance," $ 10.

permanent injury to plaintiff's lands.- Muncie
Objections not presented in record, see "Appeal Pulp Co. v. Keesling (Ind. Sup.) 1002.

and Error," 8 11.
Proof of loss insured against, see "Insurance,” of a stream held that a paragraph of the com-

In an action for damages from the pollution
8 8.
Rights under contract for municipal improve-Co. v. Keesling (Ind. Sup.) 1002.

plaint stated a cause of action.-Muncie Pulp
ments, see "Municipal Corporations," $ 7.
Right to appeal, see "Appeal and Error," $ 3.

*A riparian owner has no right to divert
Right to compensation for injuries from ex. water from the stream for manufacturing pur-

ercise of power of eminent domain, see "Emi. poses to such an extent as to deprive a lower
nent Domain," $ 2.

riparian proprietor of the natural flow of the
Right to deny will, see "Wills," § 4.

stream. - New England Cotton Yarn Co. v.
Right to forfeit insurance, see "Insurance," Laurel Lake Mills (Mass.) 231.
$ 6.

§ 2. Natural lakes and ponds.
Right to have appeal dismissed, see "Appeal

*Under the Colonial Ordinance of 1641-47
and Error," § 14.

the commonwealth held to have title to an
Right to jury trial, see "Jury," $ 1.

island in a great pond located within a town,
Right to object to competency of witness, see

which had neither been conveyed by the town,
"Witnesses,” s 1.

the colony, province, or commonwealth.-Attor-

ney General v. Herrick (Mass.) 1045.

8 3. Conveyances and contracts.
See “Guardian and Ward."

Contract between upper and lower riparian
owners as to the right of the former to discharge

water drawn from the stream by it into a pond

below the mill of the latter construed.-New

England Cotton Yarn Co. v. Laurel Lake Mills
*The warehouseman held not in fault for fail- (Mass.) 231.
ing to deliver to the depositor on demand arti-
cles exempt from attachment; all the articles $ 4. Artificial ponds, reservoirs, and
deposited having been attached.--Cornell v. Ma-

channels, dams, and flowage.
honey (Mass.) 664.

Defendants, having the right by grant to flood

their cranberry bog to the injury of plaintiff's
*Where a warehouseman refused to deliver land, held not to have the right to use plaintiff's
goods to the depositor because they had been at- land as a reservoir, pumping water onto it from
tached by a third person, it was a good defense their bog, and then, when needed, pumping it
to an action for conversion, and not merely a back.--Nye v. Swift' (Mass.) 652.
ground for a continuance of the action for con-
version.—Cornell v. Mahoney (Mass.) 664.

An action at law held the proper remedy for
impounding water on plaintiff's land, for use

of defendants' cranberry bog.-Nye v. Swift

(Mass.) 652.
Arrest without warrant, see “Arrest," $ 1.

8 5. Public water supply.
County warrants, see "Counties," $ 3.

Acts 1899, p. 568, c. 254, authorizing towns
For collection of assessment for public improve to purchase waterworks, held not to apply to

ments, see “Municipal Corporations," $ 9. purchases made antecedent to the passage of
Orders for payment from public funds, see “Mu- the statute.-Eddy Valve Co. v. *Town of
nicipal Corporations,” § 13.

Crown Point (Ind. Sup.) 536.
Search warrant, see “Searches and Seizures." Contract of water company with incorporated

village to furnish water at certain rates heid

enforceable by resident of the village.-Poud v.

New Rochelle Water Co. (N. Y.) 211.
By insured, see "Insurance," $8 4, 5.
Covenant of in lease, see "Landlord and Ten-

ant." 8 1.
Covenants of, see “Covenants," 8 2.
In application for insurance, see "Insurance," Public ways, see "Highways"; "Municipal Cor-

Private rights of way, see "Easements."
$ 2.

porations," $$ 11, 12.
On sale of goods, see "Sales," $$ 4, 6.


Oil or gas wells, see "Mines and Minerals,"
See "Drains"; "Levees."

$8 1, 2.
Dedication of easement to maintain water pipes,
see "Dedication," $81, 2.

Insurance against loss from sprinkler system, Dower, see "Dower."

see “Insurance, 8 7.
Prescriptive right to take water, see. "Ease-
ments," $ 1.

Purchase of waterworks by municipality, see
"Municipal Corporations," $ 13.

See “Descent and Distribution"; "Executors
Water courses in cities, see “Municipal Corpo and Administrators."
rations," 8 12.

Admissions by legatees as evidence, see “Evi-
$ 1. Natural water courses.

dence," $ 5.
In an action for damages to plaintiff's land Assignment of errors in will contest, see "Ap-
from a continued nuisance, consisting of the Charitable bequests and devises, see "Chari-
pollution of a stream flowing through the land,
the measure of damages stated.-Muncie Pulp Competency of witnesses in will proceedings.

Co. v. Keesling (Ind. Sup.) 1002.

see "Witnesses," $ 1.
In an action for damages from the pollution Construction and execution of trusts, see
of a stream, a paragraph of the complaint held “Trusts."

* Point annotated. See syllabus.

Examination of witnesses in will proceedings, / agency of the testator.--Compher v. Browning
see "Witnesses," $ 2.

(111.) 678.
Harmless error in rulings as to evidence on
issue of mental capacity, see "Appeal and and the person charged with undue influence

Proof of fiduciary relations between testatrix
Error," $ 24.
Impeachment of witness in will proceedings, testants to proponents.—Compher v. Browning

held not to shift the burden of proof from con-
see “Witnesses," $ 3.

(III.) 678.
Instructions in will contest assuming facts, see
"Trial," $ 5.

*In a will contest, proponents having fur-
Legacy and succession taxes, see “Taxation," nished prima facie proof of the lidity of the
$ 6.

will, the burden was on contestants to prove
Opinion evidence as to testamentary capacity, undue influence alleged by a preponderance of
see "Evidence," § 10.

the evidence.—Compher v. Browning (111.) 678.
Opinion evidence in will contest, see "Evi *On the issue of undue influence in the execu-
dence," $ 10.

tion of a will, testatrix' prior declarations, in
Review of verdict in will contest, see “Appeal harmony with the will, held admissible in re-

and Error," 8 21.
Right of children of testator to maintain bill

buttal.-Compher v. Browning (Ill.) 678.
for partition, see “Partition," $ 1.

*Prior or subsequent declarations of testa-

trix that she intended to leave her property
§ 1. Nature and extent of testamentary to her heirs held inadmissible as tending to in-

validate the will.—Compher v. Browning (117.)
Where a husband and wife were tenants in 678.
common of their homestead, the wife could not

That testatrix' agent and attorney in fact em-
devise the use of the homestead to children ployed an attorney in another town than that
for life, with remainder in fee to other per- in which she resided, to draw her will, held
sons.-Fredrick v. Fredrick (11.) 856.

not of itself an indication of undue influence.-
§ 2. Testamentary capacity.

Compher v. Browning (111.) 678.
*On the issue of mental capacity of a testator, 4. Probate, establishment, and annul.
an instruction as to monomania held correct.-

Swygart v. Willard (Ind. Sup.) 755.

On appeal to circuit court from order of
*On the issue of mental capacity of a testator, county court denying probate of will, proponents
instructions held to correctly state and apply are not limited to or bound by the testimony
the law on the subject of testator's drunken- of subscribing witnesses.-In re Barry's Will
ness.-Swygart v. Willard (Ind. Sup.) 755. (Ill.) 577.
On the issue of mental capacity of a testator,

Instructions calling the attention of the jury
an instruction that testator was required to in a will contest to the questions whether tes-
possess mind and memory enough to know and tatrix knew what was contained in her will
grasp at the one time, while making his will, the when she signed it, and whether she fully un-
extent and value of his property, was correct.-

derstood its provisions, held not erroneous as
Swygart v. Willard (Ind. Sup.) 755.

calling the jury's attention to isolated facts.—
*On the issue of mental capacity of a testator,

Compher v. Browning (111.) 678.
evidence of his excessive use of intoxicating lig-

*Where testatrix executed an instrument as
uors held admissible.-Swygart v. Willard (Ind. her will animo testandi, it will be presumed,
Sup.) 755.

in the absence of fraud, that she was aware of
On the issue of mental capacity of a testator,

its contents.—Compher v. Browning (I11.) 678.
certain evidence with respect to the use by tes In a will contest, an instruction that the
tator of intoxicating liquors, and the effect circumstances showing undue influence must be
thereof on his mind, held admissible.-Swygart such as are inconsistent with the contrary hy-
v. Willard (Ind. Sup.) 755,

pothesis held proper.—Compher V. Browning
*On the issue of mental capacity of testator,

(I11.) 678.
statements made by him in the absence of a

*On the issue of mental capacity of a testator,
child to the effect that he had given the child an instruction as to the degree of mental ca-
property of a certain value hela competent.pacity requisite held correct.--Swygart v. Wil-
Swygart v. Willard (Ind. Sup.) 755.

lard (Ind. Sup.) 755.
In a will contest, evidence examined, and held

On the issue of mental capacity of a testator
to justify a verdict holding the will 'invalid. -- an instruction as to what constitutes unsound-
Swygart v. Willard (Ind. Sup.) 755.

ness of mind, and defining monomanja, held

proper.---Swygart v. Willard (Ind. Sup.) 755.
*In proceedings to revoke a will for alleged
incompetency of testatrix, evidence that the

Where an heir joined his wife in the exe-
mother and brother of testatrix were afflicted cution of a mortgage on property devised by
with paresis was inadmissible where there were will to the wife, he thereby elected to affirm
no facts showing that the disease was acquired the will.--Starkey v. Starkey (Ind. Sup.) 876.
under circumstances which would taint the In a suit for the establishment and probate
family blood.-In re Myer's Will (N. Y.) 920. of a lost will, evidence of the declarations of
$ 3. Requisites and validity.

the testator held applicable only by way of
*In order to constitute a valid attestation of quired by Burns' Ann. St. 1901, § 2779.-Inlow

corroboration of the proof of two witnesses, re-
a will, it is not necessary that the witnesses
know that the instrument' attested is a will.-

v. Hughes (Ind. App.) 763.
In re Barry's Will (I11.) 577.

In a suit for the establishment and probate
*In order to cast the burden of proof of un- sufficiently proven within Burns' Ann. St. 1901,

of a lost will, the contents of the will held not
due influence in the making of a will on one
standing in confidential relations to testator. $ 2779.—Inlow v. Hughes (Ind. App.) 763.
such person must be shown to have been di-
rectly connected with the making of the will.-

§ 5. Construction.
In re Barry's ill (Ill.) 577.

*A clause of a will referring to certain prop-

erty as having been previously conveyed by
Undue influence to invalidate a will held such testator cannot be given the effect of a devise,
restraint and coercion as destroys the free' although the deed of conveyance referred to

* Point annotated. See syllabus.

was invalid for want of delivery.—Noble v.

Tipton (Ill.) 151.

*Devises in a will and codicil construed, and See “Evidence.”
held cumulative.-Westgate v. Farris (Mass.) Credibility as question for jury, see "Trial,"

$ 4.
Will construed, and held that on the death of Inducing witnesses to leave state, see "Ob-

Experts, see "Evidence," $ 10.
the beneficiary of a trust estate the trust became
executed and the fund became a part of her es- Instructions as to credibility, see "Trial," $ 6.

structing Justice."
tate.--Haywar v. Rowe (Mass.) 286.

Liability for costs of, see “Costs," $ 3.
*Will construed, and legatees held to take per Opinions, see “Evidence," $ 10.
capita and not per stirpes.—Hardy v. Roach Province of court and jury as to credibility,
(Mass.) 720.

see "Trial," $ 5.
*Technical rules of construction must give Review of discretion of trial court, see "Appeal
way before testator's meaning when it is ascer- Testimony of accomplices, see “Criminal Law,"
tained.—Crapo v. Price (Mass.) 1043.

§ 5.
Will creating remainder interest held to give
no vested interest to the remainderman who died i 1. Competency.
during the lifetime of the life tenant.—Crapo in evidence against him, proof of prior subsist-

Where alleged wife of accused was offered
v. Price (Mass.) 1043.

ing marriage held to overcome presumptions of
A bequest to one for life with remainder to validity of the marriage to the person offered
bis children gives a vested remainder to each

as a witness.-Hoch v. Peop!e (Ill.) 356.
child who is alive at the death of testator,-
Crapo v. Price (Mass.) 1013.

Where it is claimed that defendant in a crim-
Bequest to class includes only members living that his wife by the first marriage is living and

inal prosecution has been twice married, and
when the will is made.-Pimel v. Betjemann undivorced, the wife by the second marriage
(X. Y.) 157.

cannot testify to the fact of the first marriage.
Bequest to a class held not to include child -Hoch v. People (III.) 336.
deceased when will was made, so that her
daughter would, under 2 Rev. St. (1st Ed.)

*Wife by bigamous marriage held competent
p. 66, pt. 2, c. 6, tit. 1, $ 52, take the legacy her

to testify against accused in criminal proceed-
mother would have had had she lived. -- Timel ing.-Hoch v. People (III.) 356.
1. Betjemann (N. Y.) 157.

Question of competency of second wife, of-
Testamentary trust construed, and testator's against her husband. held one for the court.-

fered as a witness in a criminal prosecution
widow held entitled to income of $5,000 per Hoch v. People (I11.) 356.
year, undiminished by taxes, interest, or in-
cumbrances connected with testator's house, *In an action for personal injuries, plaintiff
which under the will she was entitled to occupy. held not to have waived his right to object to the
-In re King (N. Y.) 584.

incompetency of his own physicians as witnesses

for defendant.-Indianapolis & M. Rapid Tran-
*A life estate held not converted into an ab- sit Co. v. Hall (Ind. Sup.) 242.
solute estate in favor of the same person by a
clause of doubtful meaning.–Adams v. Massey

*On the issue of testator's mental capacity,
(N. Y.) 916.

testimony of a party to the issue held com

tent in contradiction of material facts testitie
8 6. Rights and liabilities of devisees to by another witness.-Swygart v. Willard
and legatees.

(Ind. Sup.) 755.
A provision of a will held a residuary clause
to which the subject of the devise to testator's confidential communications by a patient to his

*Under Burns' Ann. St. 1901, $ 505, subd. 4.
widow passed on her electing to take a life es physician are inviolate except where the patient
tate under the law.-Garrison v. Day (Ind.

consents their revelation.--Metropolitan
App.) 188.

Life Ins. Co. v. Willis (Ind. App.) 560.
*Estates given by will as a rule vest upon Under Burns' Ann. St. 1901, $ 505, subd. 4,
testator's death.-Crapo v. Price (Mass.) 1013. making inviolate communications between a pa-

In an action by a legatee to recover certain tient and physician, waiver of the privilege by
stock, held that he could not claim to be igno- an applicant for life insurance held operative a's
rant of the fact that the corporation which to those claiming under him.-Metropolitan Life
issued the stock had claimed that in so doing Ins. Co. v. Willis (Ind. App.) 560.
it had exercised its right to convert its surplus *In a suit for the establishment and probate
into capital.--Chester v. Buffalo Car Mfg.Co. of a lost will, the attorney who drew the will is
(N. Y.) 480.

competent to testify as to its provisions.-Inlow
*Rev. St. 1906, § 5971, when primary devisee v. Hughes (Ind. App.) 763.
dies before the testator, leaving issue which *In proceedings for revocation of probate of
survives him, prevents the lapse of such be- a will, evidence of physicians as to menta!
quest, unless to give it that effect would subvert disease of relatives of testatrix held privileged
the intent clearly expressed in the will.—Lar- and inadmissible, under Code Civ. Proc. $8 S3t.
will's Ex'rs v. Ewing (Ohio) 503.

836.-In re Myer's Will (N. Y.) 920.
The duty enjoined on the probate court by $ 2. Examination.
Rev. St. 1905, § 5964, on an application by a In the absence of a palpable abuse of dis-
widow to take under the will, are judicial duties, cretion resulting in substantial injury to ar
and cannot be performed by a deputy clerk of cused, the allowance of leading questions is not
said court.-Mellinger v. Mellinger (Ohio) 615. of itself ground of reversal.-Maguire F.

A deputy clerk of the probate court is with People (11.) 67.
out authority to receive the election of a Counsel has the right on cross-examination
widow to take under a will, under Rev. St. 1905, to assume that some previous answer of the
$ 5964, and such an election may, on application witness is untrue, and to put his questions in
of the party making it to a court of equity, be various forms to show that fact.--Briggs F.
set aside.- Mellinger V. Mellinger (Ohio) 615. | People (Ill.) 199.

* Point annotated. See syllabus.


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Where a witness for the people in homicide | scribing witnesses by proving inconsistent affi,
identified accused, it was improper for counsel davits made by them.-In re Barry's Will
for the people to ask a leading question induc-(I11.) 577.
ing him to emphasize his testimony.-Briggs v.
People (Ill.) 499.

A witness held not entitled to testify that he

had not heard testatrix say anything concerning
*Questions as to what testatrix said about an old women's home, to contradict other wit.
her heirs and about making a will held not

nesses who testified to conversations on such
proper cross-examination of a witness who had subject at which the witness was not present.-
testified only to what she said in regard to the Compher v. Browning (111.) 678.
trial of a certain suit.—Compher v. Browning
(III.) 678.

*On the issue of testator's mental capacity,

the impeachment of a witness held not to be on
In an action on a building contract, the re-

a collateral matter.--Swygart v. Willard (Ind.
fusal of the court to permit counsel to proceed Sup.) 755.
further in cross-examination on a certain issue
held not erroneous.-Fitzgerald v. Benner (111.) tor, certain impeaching evidence held properly

*On the issue of mental capacity of a tesa-

admitted.-Swygart v. Willard (Ind. Sup.) 75.7.
In an action on a building contract, a witness
held properly permitted to refer to entries in a

Cross-examination of a witness in a criminal
memorandum book made in the course of his case, held not to amount to an impeachment
duty as an employé of plaintiff in and about the of his testimony, so as to authorize the admis-
business in controversy, for the purpose of re- either to corroborate him or show that the

sion of a statement similar to his testimony,
freshing his recollection.-Fitzgerald v. Benner


(III.) 709.

recent contrivance.-

Commonwealth v. Tucker (Mass.) 127.
On the issue as to habits of testator, a wit-
ness held properly permitted to explain the word

*To what extent a witness may be
"indecent" as used by him.--Swygart v. Willard examined on collateral issues to test his credi-
(Ind. Sup.) 755.

bility rests largely in the discretion of the trial

court.-Robinson v. Old Colony St. Ry. Co.
On the issue of mental capacity of a testator, (Mass.) 190; Thompson v. Same, Id.
the refusal to strike out an answer of a medic
al expert witness to a preliminary question

Certain statements made by witness held com-
held harmless.-Swygart v. Willard (Ind. Sup.) petent to impeach him.- Robinson v. Old Col-

ony St. Ry. Co. (Mass.) 190; Thompson v.

Same, Id.
*The extent to which cross-examination may
go is left largely to the discretion of the trial

*Inconsistent or conflicting statements may be
court, and the Appellate Court will only inter- shown to impeach a witness.-Robinson v. 'Did
fere where an abuse of such discretion is shown. Colony St. Ry. Co. (Mass.) 190; Thompson v.
-Swygart v. Willard (Ind. Sup.) 755.

Same, Id.
On the hearing of the final report of the ad-

A certain question held competent for the
ministratrix, the widow of decedent (the ad- purpose of affecting the credibility of a wit-
ministratrix) held competent to testify as to

ness.-McInnis Boston Elevated Ry. Co.
where the personalty of decedent was found (Mass.) 911.
after his death.-Hartzell v. Hartzell (Ind.
App.) 439.

In an action against a carrier for alleged loss Power of town to reimburse tree warden, sen
of certain coal, exclusion of certain questions for

"Towns," § 1.
the purpose of impeaching defendant's record as
to its trains held not error.-American Woolen
Co. v. Boston & M. R. Co. (Mass.) 658.

* Admission of leading questions on direct ex- Liens for work and materials, see "Mechanics'
amination held within discretion of court. Liens."
Gray v. Kelley (Mass.) 724.
Certain memoranda of transactions held not

competent as evidence to supply defects in See “Process."
recollection of witness for want of sufficient
identification.-McCarthy v. Meaney (N. Y.)

Particular writs.

See “Certiorari”; “Execution"; "Habeas Cor-
Exclusion on cross-examination of question pus"; "Injunction"; "Mandamus”; “Prohi-
affecting credibility of witness hold error.-Ros bition."
senbach v. Supreme Court I. O. F. (N. Y.) 1085. Search warrant, see “Searches and Seizures."
§ 3. Credibility, impeachment, contra.

Writ of error, see "Appeal and Error."
diction, and corroboration.
witness may be questioned on cross-exam-

ination as to statements made by him in a dep-
osition, although such deposition is not intro- See “Torts."
duced in evidence.- Warth v. L. Loewenstein
& Sons (Ill.) 379.

On appeal to the circuit court from an order Agreements not to be performed within one
of the county court denying a probate of will, year, see “Frauds, Statute of," $ 2.
proponents may contradict testimony of sub-| Estates for years, see "Landlord and Tenant."

* Point annotated. See syllabus.


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