The Montgomery advertiser., 1907-04-28
Head Notes of the Decisions
 of the ALaban1a Supreme Court
MccIJ1Rr vs TIE STATE.

uUMUMUHuIE uIEu uIHu nu nu ulTM UIHu uN0ll Mll
 MCCLURE vs THE STATE Selling Liquor Without License.-IDet cided Jan. 18th. 1907. 42 So. Rep. S13.)
 Intoxicating liquors; prosecution; sufficiency of indictment.-An indict- ment charging that defendant did sell, give away or otherwise dispose Of !, spirituous vinous or malt liauors with out a license and contrary to law, suf- ficient1y charges the violation of county prohibition law.
 9. Same; election of offenses.- Where the State elected to prosecute for a specific sale, 1t was error to .Rd- nit proof of other sales by the de- fendant
 8. Same; place of sale.-Where whiskey was delivered at one place on an order received at another place, the place of delivery was the place Of sale.
 4. Criminal law; trial; instructions. ---Where several instructions are rec quested as an entirety and one of them is erroneous. all are properly refus- ed.
 Appeal from Ressemer City Court. Heard before Hon. William Jackson Reyersed and Remanded. Opinion by Anderson, J.
 Tyson, c. J.. Dowdell and Mcclellan. JJ.. concur.
 YOUNG EFT AL. vs. CAREER. Assumpsit. - (Decided December 19,
 1906. AZ So. Rep. 867.)
 Money had and received: obligation to repay.--A landlord assigned and transferred the rent note before its maturity. After the transfer of the rent note, the land was sold under execution against the landlord. The
 
 out notice Of the transfer of the note, collected the rent; Held, the transferee of the note was entitld to rcover the rents collected by the purchaser, in m action for money had and received. Appeal from Hale Circuit Court. Heard before Hon. B. M. Miller. Affirmed. Opinion by Simpson. J. Tyson, c. J.. Haralson and Denson. JJ., concur. waiver-The answer being responsive to the question and~no objection hav- ing been interposed to the question motion to exclude evidence on the ground of irrelevancy or 'mmaterialitv comes too late
 Il. Same; objection by party elict- ing evidence.-The party who draws out evidence on cross examination, may not move to exclude such evidence. 12. Evidence; experts; examination. A question to an expert concerning the latches in switch where the in- jury occurred, "state whether or not these Iatches are safe on main slopes" and the experts answer thereto T did not take them to be safe", was not open to the objection of calling for and containing a conclusion; 1t called for and gave the experts opinion.
 13. Same; conclusion of witness Evidence of a witness that he did not see what plaintiff was doing at the moment of the accident but from his position afterwards, he must have re- mained sitting. is not statement of a fact and is mere conclusion.
 14. Appeal; review; refusal of new trial; weight of evidence.-The refus- al of the trial court to grant a new trial, motion for which is based on the ground that the verdict was against the evidence will not be dis turbed on appeal; where there is evil dence tending to support the verdict, Appeal from Shelby Circuit Court. Heard before Hon. John Pelham. Affirmed. Opinion Dowdell. J. Tyson, c. l., Anderson and Mcclellan, JJ.. concur.
 MAXWELL vs. HERZFELD, ct. al Bill to Declare a Deed of Mortgage and
 to Declare the Mortgage Void Be-
 cause Security for the Husbands
 Debt.--(Decided Jan. 24th, 1907. 42
 So. Rep. 9S7.)
 Mortgages; absolute deed as mort gage; conditions of sale.-The com plainant's husband being indebted to the firm of which H. was a member, the complainant conveyed by deed ab- solute on its face lands belonging her separate estate to H., who applied the purchase money to the husbands debt to the firm. Complainant averred that at the time of the execution of the deed to H. he agreed to reconvey the land to complainant on payment to him of the consideration therein expressed, with , eight per cent interest. Held, that the conveyance was not a mortgage, and invalid under Section 2529 of the Code of 1896, but was conditional Balo of the land with right to repurchase, and not mere security for the haus- bands debt. s a. Appeal from Coosa Chancery Court. Heard before Hon. W. W. Whiteside. Affirmed. Opinion by Tyson, c. J. Haralson, Simpson and Denson, JJ., concur.
 WRIGHT vs. THE STATE. Assault With Intent to Murder.-(De-
 cided an. 16, 1907. 42 Be- Rep.
 745.)
 1. Homicide assault with intent; evidence.-on the question of intent, It is admissible to show by the physi- clan who attended the wounded party his condition, the character of the wounds and that some of them were sewed up by him; also to show that he was bloody after the fight, and how long he was in the hospital and con- fined to his bed as the result of his wound, all of which testimony relates to tho character of the wound.
 2. Criminal law; striking out eU-