The Montgomery advertiser., 1903-04-03
HEAD NOTES OF THE DECISIONS
 OF THE ALABAMA SUPREME COURT

?. Same: conflict of laws; by laws o 1 what State governed.-Where a contrac
 is made and is to be performed in on
 and the same State, if not usurious there
 1t will be enforced by the courts of Ala | bama, notwithstanding it would have of | fended the laws of this State agaips | usury had it been made here. 3. Mortgage. when a Minnesota con tract; usury.-A note and mortgage to loan company. which was organized un der the laws of Minnesota, was made payable at the office of the company's treasurer in St. Paul or to. its trusted in Minneapolis; they contained a stipu. lation that they are understood to be laws of Minnesota" The written appli- cations for the loan and to become a stockholder were addressed to the com. pany at St. Paul. Although signed in Alabama and delivered to one of the company's agents there to be transmitted to the company. they had to be examined and passed upon by the officers of the company at its place of business in Min nesota. After receiving the applications, the note and mortgage. certificate of stock and its assignment were prepared in Minnesota and forwarded to the com pany's attorneys in Alabama to have properly signed. recorded, etc.. but with out authority to finally accept the note and mortgage and certificate of stock for the company. Their acceptance for the security for the loan was to be de- upOn dIt6T d IuTtner exdmlna- tion of the abstract of title and other papers by the company's attorney in Minnesota. The draft drawn by the com- pany on Its depository for the amount of the loan, while sent to an Alabama bank to be handed to the borrower. was not to be paid until the papers were ap- proved by the companys' attorney in Minnesota. Held: that the note and mort gage were delivered in Minnesota and were Minnesota contracts. Q1aralson, J., dissenting).
 1. Contract. by what law governed.- Where contract is delivered or first becomes a binding obligation upon the parties is deemed the place of the con- tract for the purpose of designating what law governs.
 5. Mortgage. when not made for pur- pose of evading usury laws.-A mort gage to Minnesota corporation was in the form adopted by the corporation which was the usual and customary form employed by it in doing the same H6usiness in twentytfour States. and italy. since the organization of the com pany The form adopted was legal in the home State of the corporation and contained stipulation that it was to be sN,s governed by the laws of that State. was not a mere device to evade the usury laws of abama or made with that pur- pose, though repugnant thereto.
 Reversed and remanded.
 Opinion by Tyson, J.
 ENGLEHART ct al V. RICHTER, Ex-
 ecutor. etc.
 Action on promissory note-Appeal from
 the Circuit Court of Cullman.
 ]. Trial; practice; joint defendants; sev- erance.-1n a civil action against two de- defendants. both of whom have filed pleas Tn bar. defendants are not entitled to a pleas.
 ?. Witness; incompetency; burden of proof.-The burden of showing incompe- tency of witness is upon the objecting party.
 3. Same: when burden met; transaction with deceased person Code, Section 1T9D. In an action by an executor upon a promissory note executed by defendants to his testator. the defendants are incom- petent as witnesses to give testimony whose direct office and purpose are to cor roporate or strengthen other evidence giy- en of transaction with or statement by such testator.
 4. Same; evidence: Code Section 17s4.- In an action on promssory note given 10 plaintfn's testator, maker of the note wno IS one Of the defendants and wife of her co-defendant. is not competent to tes- tify for whose debt the note was given.
 D. Evidence: objections; shifting posi- tlon.-The urging of an in the appellate court of an objection to evidence different from that urged in the lower court is an aoandonment of the objection really made. and neither objection can be con sidered.
 6. General affirmative charge; when i'm proper. The general affirmative charge is never proper where the evidence upon any material issue Is conflicting, or where diff ferent differences may be drawn there from.
 '. Same; when plea of coverture not proven. Proof by a defendant that she was the wife of the other defendant at the time the note sued on was executd. without any proof that said note was given for the debt of her hlishand dos. not entitle her to the general affirmative charge on her plea of coverture.
 Affirmed.
 Opinion by Tyson, J.