UNDUE INFLUENCE. Affecting validity of will, see Wills, §§ 163, 166. Constructive trust in respect to property acquired by undue influence, see Trusts, § 97. UNILATERAL CONTRACTS. See Contracts, § 10. UNITED STATES. Constitutional guaranties as to privileges and UNIVERSITIES. See Colleges and Universities. USAGES. See Customs and Usages. USURY. I. USURIOUS CONTRACTS AND TRANSACTIONS. (A) Nature and Validity. $ 26. Acts 1908, No. 68, does not change the usury laws as to discounts permitted by Rev. Civ. Code, art. 2924.-Roux v. Witzman (La.) 205. VACATION. Of streets, see Municipal Corporations, § 657. Of street, necessity of compensation for injuries to abutting owner, see Eminent Domain, § 100. Validity of sales as to creditors or subsequent purchasers, see Fraudulent Conveyances. Sales by or to particular classes of persons. See Colleges and Universities, § 6; Executors and Administrators, §§ 332-388. Between parent and child, see Parent and Life tenants, see Life Estates, § 23. Mortgagors, see Mortgages, § 274. Sales of particular species of, or estates or intercsts in, property. See Homestead, §§ 111, 118; Mines and Miner- Mortgaged property, see Mortgages, $$ 274, 536. ministrators, §§ 332-388. versities, § 6. Standing timber, see Logs and Logging, § 3. Sales on judicial or other proceedings. On partition, see Partition, $109. Judgment after trial of issues in general, see Judgment by default, see Judgment, §§ 138, Judgment in action for divorce, see Divorce, § Sale of property of decedent, see Executors I. REQUISITES AND VALIDITY OF § 13. Lesion in sale of real estate held not established by the evidence.--Heard v. Blanks (La.) 85. § 13. The value of property, to support an action of lesion beyond moiety, must be fixed and certain.-Hyde v. Barron (La.) 126. § 13. In an action for lesion belond moiety, in fixing the value of the property, the price must be considered as of the date of the sale under Civ. Code, art. 1871.-Hyde v. Barron (La.) 126. § 13. An action for lesion beyond moiety is founded on the implied error of the vendor and inadequacy of price.-Hyde v. Barron (La.) 126. § 18. Where a written option is given for the purchase of real estate, a tender of the price makes mutuality in the contract relations of the parties.-South Florida Citrus Land Co. v. Walden (Fla.) 554. $ 22. Description of land in the contract for its sale held sufficiently definite.-South Florida Citrus Land Co. v. Walden (Fla.) 554. $37. A misrepresentation by vendor to be ground for rescission must be as to some material thing unknown to the purchaser.-Hirschman v. Hodges, O'Hara & Russell Co. (Fla.) 550. $ 37. Right of a purchaser to rescind for m'srepresentations of the vendor stated.-Hirschman v. Hodges, O'Hara & Russell Co. (Fla.) 550. III. MODIFICATION OR RESCISSION (B) Rescission by Vendor. VENUE. Of criminal prosecutions, see Criminal Law, { 142. OF TRIAL. § 90. The resolutory condition in a contract for the sale of land held not enforceable in the III. CHANGE OF VENUE OR PLACE absence of proof of fraud, or where the parties had made it impossible to restore matters to the status quo in view of Civ. Code, art. 2045. Miguez v. Delcambre (La.) 108. $104. That the original vendee of immovables knew of the inadequacy of the price at the time of sale did not entitle him to relief against a third person purchasing from the original purchaser in good faith through lesion beyond moiety.-Morgan v. O'Bannon & Julien (La.) 293. § 104. Civ. Code, art. 1861, giving an action of lesion beyond moiety, does not apply to a third person purchasing from a vendee obtaining the land at an inadequate price, where the third person acts in good faith.-Morgan v. O'Bannon & Julien (La.) 293. (C) Rescission by Purchaser. Of criminal prosecutions, see Criminal Law, § 142. VERDICT. Aider by, see Pleading, § 433. In civil actions in general, see Trial. § 309. Review in criminal cases, see Criminal Law, §§ VERIFICATION. Of petition for certiorari, see Certiorari, § 42. VESSELS. $119. That a purchaser may rescind for misrepresentation by the vendor, he must pursue his remedy in due time after the injury is discovered. Hirschman v. Hodges, O'Hara & Rus- See Admiralty; Shipping. sell Co. (Fla.) 550. V. RIGHTS AND LIABILITIES OF Purchasers at judicial sales in general, see Ju- (B) As to Third Persons in General. Possession of purchaser as possession of vendor, see Adverse Possession, § 25. (C) Bona Fide Purchasers. § 230. A certain recital in a deed to a purchaser's grantor held not sufficient to impute constructive notice to the purchaser ti.at part of the purchase price had not been paid.-Spellman v. McKeen (Miss.) 914. § 231. One purchasing from the record owners in good faith, relying on the public records, hold a bona fide purchaser.-Rocques v. Freeman (La.) 68. VI. REMEDIES OF VENDOR. VESTED REMAINDERS. Construction of Wills, see Wills, § 634. Protection, see Constitutional Law, §§ 102, 105 VILLAGES. See Municipal Corporations. VINDICTIVE DAMAGES. See Damages, §§ 87, 93. VOLUNTARY ASSIGNMENTS. See Assignments for Benefit of Creditors. VOLUNTARY ASSOCIATIONS. See Associations. VOTERS. (A) Lien and Recovery of Land. Amendment of bill setting up new cause of action, see Pleading, § 248. See Elections. WAGERS. WAIVER. Lien on sale of standing timber, see Logs and See Gaming. § 265. In a suit to foreclose a vendor's lien on land purchased by defendant and P., the order of sale and the method of applying proceeds determined. Hays v. Bostick (Miss.) 462. VII. REMEDIES OF PURCHASER. (B) Actions for Breach of Contract. § 351. Measure of damages for breach of contract to convey land defined.-Phelan v. Tomlin (Ala.) 382. § 351. A vendor, in case no warranty is stipulated in a deed of sale, on its being held void, is liable for the restitution of the price, but is not liable for the fee of the attorney for defending the suit and calling him in warranty. -Germillion v. Roy (La.) 576. VENDORS' LIENS. See Vendor and Purchaser. § 265. See Estoppel. Errors waived in appellate court, see Appeal Of objections to particular acts, instruments, Process or notice of action, see Appearance, § 20. To raise constitutional questions, see Constitutional Law, § 43. WARDS. See Guardian and Ward. WAREHOUSEMEN. Carrier as warehouseman, see Carriers, § 143. $ 25. A warehouse keeper held jointly and severally liable with the mortgagor of a bale of cotton for conversion thereof.-l'ippin v. Farmers' Warehouse Co. (Ala.) 882. WARNING. Precautions against injuries to servants, see Master and Servant, § 150. WARRANT. Arrest without warrant, see Arrest, § 63. WARRANTY. § 126. In an action for damages for the flooding of land caused by an excavation, conversations relative to the excavation held admissible to show defendant ought to have known of the damage it would cause plaintiff to suffer. -Southern Ry. Co. v. Lewis (Ala.) 746. VII. CONVEYANCES AND CON TRACTS. § 155. The property rights of riparian owners in and to the waters bordering on their lands constitute a part of the land and pass with it by conveyance of the land.-Southern Ry. Co. v. Lewis (Ala.) 746. VIII. ARTIFICIAL PONDS, RESERVOIRS, AND CHANNELS, DAMS, AND FLOWAGE. Acts and declarations as res gestæ, see Evidence, § 121. Liability for injuries from flowage caused by acts of independent contractor, see Master and Servant, § 319. IX. PUBLIC WATER SUPPLY. (A) Domestic and Municipal Purposes. Franchise tax on waterworks, see Licenses, § 18. Covenants of, damages for breach, see Cove-Grant of exclusive rights, see Municipal Corponants, § 130. In insurance policy, see Insurance, §§ 253, 288, 367. On sale of goods, see Sales, § 263. WATERS AND WATER COURSES. See Drains; Levees; Navigable Waters. In cities, injuries from defects or obstructions, see Municipal Corporations, § 843. III. SUBTERRANEAN AND PERCOLATING WATERS. Liability of artesian well for public supply to privilege tax on waterworks, see Licenses, § 18. V. SURFACE WATERS. Liability of municipality for injuries from insufficient drainage, see Municipal Corporations, § 843. $116. Landowners can have no property rights as to surface waters by virtue of the ownership of the land.-Southern Ry. Co. v. Lewis (Ala.) 746. § 119. The nature of the rights and duties of adjoining landowners as to surface waters and the drainage thereof stated.-Southern Ry. Co. v. Lewis (Ala.) 746. § 119. The right to collect surface waters in artificial drains stated.-Southern Ry. Co. v. Lewis (Ala.) 746. $119. City lots held to be in exception to the rule that surface waters cannot be artificially drained. Southern Ry. Co. v. Lewis (Ala.) 746. § 119. A railroad diverting surface waters so as to flood another's land held not within the exception that surface waters may be artificially drained on city lots.-Southern Ry. Co. v. Lewis (Ala.) 746. § 123. Act of God in sending unprecedented rains held no defense to an action for flooding lands. Southern Ry. Co. v. Lewis (Ala.) 746. § 126. In an action for damages for the flooding of land, certain evidence held admissible.Southern Ry. Co. v. Lewis (Ala.) 746. rations, § 686. Opinion evidence in action for breach of contract to supply water, see Evidence, § 472. § 188. If within the limit of contract rates and by its right to reasonable compensation a water company capriciously and oppressively for ulterior and unlawful purposes discriminates so as to wrong and injure consumers, it abuses its franchise, and the inquiry would be as to whether it might not be punished by indictment or process to revoke or annul the same.-State v. Birmingham Waterworks Co. (Ala.) 354. § 201. In an action for breach of contract to supply water, whether the contract existed held for the jury.-Birmingham Waterworks Co. v. Ferguson (Ala.) 150. § 201. In an action for breach of contract, to supply water, held not necessary to show by the written contract the relation between the company and the city as to supplying water.Birmingham Waterworks Co. v. Ferguson (Ala.) 150. § 201. In an action for breach of a contract to supply water, held not error to instruct that plaintiff could recover for inconvenience and annoyance caused by the breach.-Birmingham Waterworks Co. v. Ferguson (Ala.) 150. § 201. In an action against a water company for breach of a contract to supply water to plaintiff by shutting off the supply for 30 hours, the inconvenience in obtaining water was within the contemplation of the parties as a probable result of the breach, and an item of recoverable damages.-Birmingham Waterworks Co. v. Ferguson (Ala.) 150. $201. A water company held bound to serve all consumers with equal facilities and without discrimination.-State v. Birmingham Waterworks Co. (Ala.) 354. $201. Certain conduct of a railroad company held not to amount to the acceptance of an offer of a water company, so as to make a contract.-Vicksburg Waterworks Co. v. Yazoo & M. V. R. Co. (Miss.) 915. § 203. If a rate to favored customers by a water company is less than the reasonable rate, it does not impinge on rights of consumers gen§ 126. In an action for damages for the flood-erally. State v. Birmingham Waterworks Co. ing of land caused by an excavation, evidence (Ala.) 354. of repairs held admissible.-Southern Ry. Co. v. § 206. Where a city failed to remove an obLewis (Ala.) 746. struction in its system of waterworks, and thereby deprived a customer of water, the customer held entitled to certain damages.-City of Jackson v. Anderson (Miss.) 896. § 206. A city operating a system of waterworks held liable for failing to remove an obstruction in the system.-City of Jackson v. Anderson (Miss.) 896. WAYS. (I) Hearing or Trial. § 331. In proceedings to contest a will, an instruction that to hold the will valid the jury must find it was signed in the presence of three witnesses attesting the same held not erroneous.-Venable v. Venable (Ala.) 833. (K) Review. § 386. An assignment of error to the correctness of a verdict in the probate court against Venable v. Venable (Ala.) 833. Public ways, see Municipal Corporations, $$ the validity of a will cannot be reviewed.657-697. Rights as to community property, see Husband and Wife, § 273. Rights as to homestead, see Homestead, § 141. WIFE. See Husband and Wife. WILLS. See Descent and Distribution; Executors and Charitable bequests and devises, see Charities. IV. REQUISITES AND VALIDITY. (B) Form and Contents of Instruments. 894. A parol agreement by two sisters that the survivor should have certain personalty held merely a futile effort to make a parol will.Marshall v. Stratton (Miss.) 132. (C) Execution. $ 400. In proceedings to contest a will, the matter of taxing the estate with costs is largely in the discretion of the court, and its action will not be disturbed on appeal.-Venable v. Venable (Ala.) 833. VI. CONSTRUCTION. (A) General Rules. § 439. Any mere indistinctness or awkwardness of expression in the words in a will must be so dealt with, if possible, as to effectuate the intent of the testator.-Davenport v. Collins (Miss.) 449. § 442. In construing a will, the intention of testator as expressed therein prevails over all other considerations if consistent with the principles of law.-Floyd v. Smith (Fla.) 537. § 456. In construing wills, words should be given their usual meaning, unless some other meaning is intended.-Floyd v. Smith (Fla.) 537. § 457. Technical words are presumed to have been uesd in a will in a technical sense, unless the context shows intention to use them otherwise.-De Bardelaben v. Dickson (Ala.) 986. (B) Designation of Devisees and Legatees' and Their Respective Shares. § 506. The word "heirs," as used in a will giving the remainder of an estate to testator's widow and at her death to be equally divided between her heirs, held not susceptible of being construed as meaning "children."-De Bardela § 118. Attestation of a signature to a will by parties who did not see the testator sign held sufficient under the statute.-Miller v. Mil-ben v. Dickson (Ala.) 986. ler (Miss.) 210. (F) Mistake, Undue Influence, and Fraud. Constructive trust arising from fraud or undue influence in procuring devise or bequest, see Trusts, § 97. § 163. Proponents of a will unnaturally disposing of testator's property have the burden of giving some reasonable explanation thereof.Jamison v. Jamison (Miss.) 130. § 166. Evidence to show undue influence need not be of that direct and positive character required to establish a tangible fact.-Jamison v. Jamison (Miss.) 130. V. PROBATE, ESTABLISHMENT, (H) Evidence. § 289. In proceedings to contest a will, where a forgery is alleged, the burden of proof is not on contestant to prove that deceased did not sign the paper.-Venable v. Venable (Ala.) 833. $297. In proceedings to contest a will, where proponent introduced, without objection, testimony as to statements made by deceased subsequent to the supposed execution of the will to show that he recognized said will, the contestant was entitled to show contrary statements by deceased.-Venable v. Venable (Ala.) 833. § 297. In a will contest, declarations of the testator, made shortly before his death, that he had no will, were incompetent as hearsay.Miller v. Miller (Miss.) 210. § 614. A will construed, and held to show that testator intended that his wife and child should have a life estate, and the grandchildren should have a remainder in fee.-Davenport v. Collins (Miss.) 449. § 616. A devise of life estate, with power to the devisee to dispose of the property, held to give power to convey an estate in fee to land embraced in the devise.-Warren v. Ingram (Miss.) 888. (F) Vested or Contingent Estates and In terests. life estate with remainder to all testator's chil§ 634. A will held to vest in the widow a dren as a class living at his death, the shares of all those dying before the termination of the life estate being preserved by Code 1907, § 6166. -Pierce v. Fulmer (Ala.) 728. (H) Estates in Trust and Powers. Creation, existence, and validity of trusts in general, see Trusts, § 21. § 672. A will held not to create a trust in favor of testatrix's daughter.-Floyd v. Smith (Fla.) 537. § 37. A witness having no personal knowledge of the receipts of an office of a telegraph company during a specified month, nor any memorandum shown to be correct, may not testify as to the receipts.-Williams v. City of Talladega (Ala.) 330. $48. One serving term in prison for forgery against whom indictments are pending held not an approver and not an incompetent witness under Gen. St. 1906, § 3975.-Menefee v. State (Fla.) 555. $66. Testimony of a child cannot be excluded on the ground that he should not be permitted to testify against his mother.-Chavigny v. Hava (La.) 696. (C) Testimony of Parties or Persons In terested, for or against Representatives, Survivors, or Successors in Title or Interest of Persons Deceased or Incompetent. $140. Under Code 1896, § 1794, the distributees of the estate of a deceased mortgagor held competent to testify to transactions between the mortgagor and mortgagee in a suit by the mortgagee against one claiming title by virtue of a lien under section 2774.-Snellgrove 7. Evans (Ala.) 560. § 144. In a suit to enforce a resulting trust in land, based on a transaction with a decedent whose estate is interested therein, evidence of complainant, detailing various conversations and transactions had between him and decedent, is incompetent and illegal.-Watkins v. Carter (Ala.) 318. III. EXAMINATION. Of expert witnesses, see Evidence, § 548. Of nonexpert witnesses as to opinions, see Evidence, 500. Review of rulings, see Appeal and Error, § 1048; Criminal Law, § 11701⁄2. Review of rulings as dépendent on presentation of objections in lower court, see Appeal and Error, 206. (A) Taking Testimony in General. § 235. A witness who is competent may testify without being specially interrogated.-Mobile, J. & K. C. R. Co. v. Hawkins (Ala.) 37. § 236. A question inviting a purely speculative answer is properly disallowed.-Alabama Great Southern R. Co. v. Yount (Ala.) 737. $240. Question to a witness held not objectionable as leading.-Southern Hardware & Supply Co. v. Standard Equipment Co. (Ala.) 789. $ 240. The allowing or denying of leading questions is largely discretionary with the trial court.-Southern Hardware & Supply Co. v. Standard Equipment Co. (Ala.) 789. $240. Leading questions were properly excluded.-Weatherly v. Nashville, C. & St. L. Ry. (Ala.) 959. § 248. An answer not responsive to the question is properly excluded.--Alabama Great Southern R. Co. v. Yount (Ala.) 737. § 262. The allowance of a witness to be recalled for further examination before the examination of witnesses has closed is within the discretion of the trial court and will not be disturbed unless abused.-Birmingham Ry., Light & Power Co. v. Moseley (Ala.) 424. (B) Cross-Examination and Re-Examina tion. § 268. In an action for injuries to a locomotive fireman caused by a defect in the roadbed, a witness for the railroad might be asked on crossexamination a certain question with a view of testing his recollection and knowledge.-St. Louis & S. F. R. Co. v. Phillips (Ala.) 638. tion of a witness may take to test his recollection and his knowledge is largely within the discretion of the trial court.-St. Louis & S. F. R. Co. v. Phillips (Ala.) 638. $268. The scope which the cross-examina $278. The female on prosecution for adultery testifying that defendant was the father of her child, held cross-examination as to her intercourse with others about the time of conception was permissible.-Palmer v. State (Ala.) 358. § 286. In an action on an instrument in the form of a note, certain evidence held admissible on redirect examination.-Penton v. Williams (Ala.) 35. § 290. Questions propounded on redirect examination, not in rebuttal of anything testified to on cross-examination, but merely a repeating of what had been gone into in the examination in chief, held properly excluded.-Penton v. Williams (Ala.) 35. IV. CREDIBILITY, IMPEACHMENT, CONTRADICTION, AND COR ROBORATION. Credibility of witnesses as question for jury, see Trial, § 140. Instructions as to credibility, see Trial, § 236. (A) In General. $317. Where a witness knowingly and intentionally gives false testimony as to a material matter, the jury may reject his entire testimony.-Venable v. Venable (Ala.) 833. |