warranted. Applying the principles laid | counts and the bill of particulars filed with down in Hancock v. Hancock, supra, and in the declaration is as follows: the other cases cited, we are clear that the charge of extreme cruelty has not been sustained. It follows that the final decree appealed from must be reversed, and it is so ordered, and the cause remanded, with direc- April 12. To visit and treatment self... tions to dismiss the complainant's bill.

WHITFIELD, C. J. E. L. Stewart brought sequently, and he could not remember exan action against Isaac A. Stewart, as exactly when. One of the items was without ecutor of the estate of Elizabeth P. Hasty, date and was as follows: "5 to 17-169 hr deceased, for services rendered the deceased as physician in her last illness.

Ex 13 x 13 at $10.00, $1690.00." This was The declaration consists of the common explained to mean that the plaintiff had

charged for 13 hours' extra time rendered the deceased as her physician for each of 13 days from May 5th, to May 17th, at $10 per hour, totaling $1,690.

The original entries showed a charge of $30 for two visits each day from May 5th to May 17th, inclusive. Erasures and changes also appear in the original entries. The bill of particulars and the proofs claim only $15 for one visit each day from May 5th to May 17th, inclusive.

*

In testifying as to the discrepancy between the original entries and the bill of particulars, the plaintiff said: "I first put it down to two visits per day instead of one, feeling that I was entitled to two visits on account of staying all night, but, after thinking it over, I thought that I would just charge for one straight visit, so I cut the bill down, and because I added on the $1,690 is not at all the reason I cut this out. Was my way of doing business. The bill looked so big that I thought I would cut it down." A separate entry without date of the abovequoted item of $1,690 for extra hours appear in the pages of the book account admitted in evidence. The plaintiff testified that he could not state exactly when this last entry was made; that he might have made the quoted $1,690 entry after he had rendered a bill of $2,000 to the executor. It was shown that Mrs. Hasty, the patient, died at 9 p. m. May 16th, so the charges for May 17th are clearly erroneous.

The original entries and the accompanying testimony are of such a character that the entries should not have been admitted to prove the propriety of the charges as made therein against the estate of the decedent. 1 Elliott on Ev. §§ 461, 466, 468.

346; Grady v. Thigpin, 6 Fla. 668; Hooker v. Johnson, 6 Fla. 730; Robinson v. Dibble's Adm'r, 17 Fla. 457; Dunbar v. Wright's Adm'r, 20 Fla. 446; Chapin v. Mitchell, 44 Fla. 225, 32 South. 875; Lewis v. Meginniss, 30 Fla. 419, 12 South. 19.

The error in admitting the original entries in evidence is vital to the merits of the controversy, and was necessarily unjust and harmful to the plaintiff. Other errors assigned and argued may not again appear. The judgment is reversed.

SHACKLEFORD and COCKRELL, JJ.,

concur.

TAYLOR, HOCKER, and PARKHILL, JJ., concur in the opinion.

(62 Fla. 510)

KEATHLEY et al. v. SEWELL et al.
(Supreme Court of Florida, Division B. Oct.
17, 1911.)

(Syllabus by the Court.)
EXECUTORS AND ADMINISTRATORS (§ 357*)-
SUBJECTS OF RELIEF SALES BY ADMINIS-
TRATOR.

Where an administrator de bonis non buys up debts and judgments against the estate of the decedent for about one-tenth of their face value, and then files a petition with the county judge for the sale of the real estate of the decedent, and to be allowed to bid for such real estate, and to become a purchaser thereof, and to apply the proceeds to the said judgments and other demands, and where it appears that three days after the filing of said petition, and without notice, an order was made for the sale of tion, upon a bill filed in the circuit court to such realty according to the prayer of said petienjoin such sale, the circuit judge committed no reversible error in granting such injunction under his constitutional supervisory power, alall the parties in interest were not at the time though the bill may have been defective, because parties in the bill.

[Ed. Note. For other cases, see Executors and Administrators, Dec. Dig. § 357.*]

Appeal from Circuit Court, Hernando County; W. S. Bullock, Judge.

[3] Section 1538 of the General Statutes of 1906 provides that: "In all suits the shop books and books of account of either party, in which the charges and entries shall have been originally made, shall be admissible in evidence in favor of such party; but the credibility of such evidence shall be judged of by the jury in case of a trial at law, and Bill in equity by Lillie Sewell and another by the court in case of a hearing in equity." against Norton Keathley, as administrator If the charges and entries do not appear to de bonis non of the estate of C. C. Keathhave been fairly and clearly and unequivocal-ley, and another. From a decree for comly made and remain as original entries made plainants, defendants appeal. Affirmed. practicably contemporaneous with the transaction, the charges and entries are not such as are contemplated by the statute.

Davant & Davant, for appellants. F. B. Coogler, for appellees.

[1] Books of account offered in evidence as such should be submitted to the court for a HOCKER, J. Lillie Sewell, John A. Sewdetermination upon proofs as to whether ell, her husband, Daisy Bracey and Robert L. they contain charges and entries that have Bracey, her husband, Mignon Bracey and been originally made within the meaning and Harry E. Bracey, her husband, of Hernando purpose of the statute. [2] Where it does county, Fla., filed a bill in the circuit court not clearly appear that charges and entries of said county against Norton Keathley, as in books of account offered in evidence un- administrator de bonis non of the goods, der the statute had been originally made as chattels, rights, and credits of Christopher contemplated by the statute, they should not C. Keathley, deceased, Norton Keathley in be admitted as independent evidence. See his own right, and Florence L. Keathley, his Spann v. Baltzell, 1 Fla. 301, 46 Am. Dec. I wife, and William A. Thaxton, commission

er, appointed to sell the property described [ and complete inventory and settlement therein the bill. It is alleged that Norton Keath- of." It is alleged that to permit the sale ley was appointed administrator de bonis will enable defendants to perpetrate a fraud non in June, 1906; that complainants Alger- against the estate and complainants; that non Keathley, now of Columbia, S. C., Mrs. the notes and mortgages which were outMary E. Keathley, widow of C. C. Keathley, standing against the estate were assigned and Norton Keathley constitute all the to Norton Keathley for the use and benefit heirs at law of said C. C. Keathley, deceas- of the estate and complainants; and that, ed; that previous to the appointment of notwithstanding this, he claims to own them Norton Keathley a dower interest in the in his own right. It is also alleged that othproperty described in the bill had been al- er heirs of C. C. Keathley have made adlotted to Mrs. Mary E. Keathley, who is vancements for payment of taxes and other non compos mentis; that Norton Keathley expenditures for the protection of said eshas colluded and conspired to defraud and tate for which they have not been reimbursed, cheat the said estate out of large sums of which was well known to Norton Keathley. money; that he has bought up certain judg- The bill prays that defendants answer the ments against the estate for small considera- bill, but not under oath; for a cancellation tions, and had them assigned to his wife, of the judgments owned by Florence KeathFlorence, and now seeks to have them en- ley; for a full and complete accounting by forced against the estate, under an order of Norton Keathley as administrator de bonis the county judge of Hernando county, direct- non, including all money expended and reing that said property be sold to satisfy said ceived; for a cancellation of the judgments, judgments; said order bearing date Decem- notes, and mortgages purchased by him ber 22, 1910. It is alleged that the said against the estate, and for general relief. administrator claims to have paid out a large It also prays for a temporary injunction, sum of money for tax redemptions, a large until further order or final hearing by the sum for insurance, and a large sum, viz., court. $638, for fees and extraordinary expenses; Attached to the bill as a part of it is the that, without notice to complainants, or ei- petition of the administrator de bonis non ther of them, the said administrator made to the county judge, setting up the ownerapplication by petition to the county judge of ship of certain lands by the deceased, KeathHernando county for an order to sell the ley; that the title became involved by reareal estate to satisfy the judgments and son of unpaid taxes; and that, believing claims aforesaid, all of which appears from there was danger of said lands being sold a certified copy of the petition attached to under execution at a loss, and being without the bill and made a part thereof; that, on assets of the estate of his intestate, with December 22, 1910, the county judge entered his own means and credit, for a comparaan order to sell the lands in accordance with tively small sum (between three and four the prayer of the petition, a certified copy hundred dollars), "though by greater inciof the said order being made a part of the dental expenses and personal liability," he bill; that Thaxton, as commissioner, had ad- effected "assignments to himself individually vertised the lands for sale on the 6th of and composition" of judgments amounting to February, 1911. It is alleged that a large a little over $4,000, which judgments petipart of the lands advertised for sale have tioner later assigned to Florence L. Keathley, been allotted to Mrs. Mary C. Keathley as his wife, with the purpose of avoiding perher dower interest in the estate, and is sonal complication. The petition then deexempt from sale; that the assignments of scribes the lands which he alleges are subthe judgments to the wife of Norton Keath-ject to the lien of said judgments, while ley was made to defraud the estate. It is alleged that the schedule attached to the petition filed in the county judge's court does not show the tax certificates were upon lands of the estate, nor a just charge against it. It is alleged that the tax certificates were purchased by Norton Keathley at a greatly reduced price, and the sums stated in the schedule are not the true sums paid therefor; that the fees and extraordinary expenses recited in the schedule are exorbitant and unreasonable, and not a just claim against the estate; and that the proceeding before the county judge was instituted for the purpose of cheating and defrauding the estate and complainants. It is further alleged that the administrator de bonis non has received the rents and profits of the entire estate, has collected debts owing to it, "for

petitioner has incurred expenditures for taxes and other unavoidable expenses incident thereto, as exhibited in a schedule annexed to the petition, besides other expenditures by petitioner, made for and on account of the estate, and that he is informed there are other demands outstanding. The petition alleges that said lands have been and are almost wholly unproductive to the income of the dowress; that petitioner has acquired no personal assets of the estate, and the sale of said lands will "promote all interests and estate thereon, and it is necessary for the payment of said judgments." Wherefore, petitioner prays decree of this honorable court, authorizing and directing the sale of the said lands according to law, saving provision of the said dower, and for the further application of the proceeds to the said judgments

tive rank thereof, and that your petitioner | purchase price during her life. She was not be authorized and empowered to bid and be- represented before the county judge, and is come a purchaser at such sale or sales, with not a party to this proceeding. It is alleged other and further relief in the premises as is she is non compos mentis. provided by law, and such as is consistent with equity." There is a schedule attached to the petition, apparently showing the cost of certain tax certificates, a small sum for surveying, $108 for insurance, a small sum for a quitclaim, the cost of an abstract of title, and closing with this item, "Fees and extraordinary expenses (estimated), $638."

It may be that the bill should be amended so as to get all the parties and interests before the court, but as it stands we think there was enough to give the court jurisdiction, and enough to justify the injunction. See Deans v. Wilcoxon, 25 Fla. 980, 7 South. 163; 18 Cyc. 287-309; 11 Am. & Eng. Ency. Law (2d Ed.) 918; 28 Am. & Eng. Ency. Law (2d Ed.) 1029.

The decree appealed from is affirmed, at the cost of appellant.

TAYLOR and PARKHILL, JJ., concur.

WHITFIELD, C. J., and SHACKLEFORD and COCKRELL, JJ., concur in the opinion.

The foregoing presents the substance of the bill, petition, and schedule. The county judge granted the prayer of the petition. He states in the order that the hearing was on the verified petition, supported by documentary evidence from the record of the said estate remaining in his court, and was ex parte. The petition was sworn to before the county judge on the 19th of December, 1910, and the order for the sale was made on the 22d of December, 1910. The order authorized the administrator de bonis non to bid on (Supreme Court of Florida, Division A. Oct.

the property, and directs a deed to be executed to him, should he become the purchaser. As the order recites that the prayer of the petition was granted, it authorized the administrator de bonis non to use the judgments and claims he had bought up, and caused to be assigned to his wife, in payment of the property. Upon a hearing, the circuit judge granted a temporary injunction, from which order an appeal was taken to this court. The assignments of error question in various forms the jurisdiction of the chancery court, and the sufficiency of the bill. It is true the circuit judge in his order makes some criticism of the bill, because of some looseness in its structure, and the failure to bring in all the interested parties; but, suggesting amendments, he found enough in the bill to justify an injunction. In this we think he committed no error. To say the least of it, the proceeding before and the order by the county judge, as shown by this record, justified the exercise of the constitutional supervisory power of the circuit judge. The order of sale seems to have been made without notice, three days after presentation of the petition. See section 2414, Gen. Stats. of 1906. It seems to have authorized the administrator de bonis non to buy the real estate at the sale, and to use in such purchase at their face value about $4,000 of judgments, which his petition shows only cost him between $300 and $400. This was enough to give color to the charge of fraud contained in the bill. At best, he was entitled to no more than reimbursement of the amounts actually paid by him, and interest. The order also authorized the sale of the lands in which the widow had been allotted dower, and the payment to her by the purchaser of 8 per cent. interest on the

REVELS v. STATE.

17, 1911.)

(Syllabus by the Court.)

(62 Fla. 83)

SHACKLEFORD, J. [1] The plaintiff in error was tried and convicted of uttering a forged instrument, and seeks relief here by writ of error. The only assignment argued is the one based upon the overruling of the motion for a new trial, and the only grounds of such motion insisted upon are those which question the sufficiency of the evidence to support the verdict. We confine ourselves to the consideration of the grounds argued. Johnson v. State, 55 Fla. 41, 46 South. 174.

[2] It would be a profitless task to attempt to set out the evidence, or even to give a synopsis of it. It is sufficient to say that

we have given the same a careful examination and are of the opinion that it is amply sufficient to support the verdict. In fact, the plaintiff in error practically admits in his own testimony that he uttered a forged instrument, but it is contended that, since no one was actually defrauded thereby, the elements of the crime charged were not proven. Therefore the conviction was not warranted. This contention is untenable. Hawkins v. State, 28 Fla. 363, 9 South. 652. Also see King v. State, 43 Fla. 211, 31 South.

254.

The judgment must be affirmed.

4. CONSTITUTIONAL LAW (§ 48*)-DETERMINING VALIDITY OF STATUTE-CONSTRUCTION IN FAVOR OF CONSTITUTIONALITY.

The object and the sole object, as declared in its titie, of Act No. 182 of 1908, amending and re-enacting Act No. 93 of 1888, is to authorize the bringing of suits against carriers for loss of freight or damage thereto, either at the points of delivery or at the domiciles of the carriers, at the option of the plaintiffs, and to repeal all laws, general and special, in conflict with that object. Hence the repealing clause of the act, purporting specifically to repeal section 12 of Act No. 37 of 1877, which declares that the defendant company "shall be sued only at its domicile, except in cases of trespass," could in no event be construed to operate the repeal of said section, save in so far as it prohibits the bringing of suits such as are provided for by clause would be broader than the title of the act, and obnoxious to article 29 of the Constitution of 1879.

WHITFIELD, C. J., and COCKRELL, J., said act of 1908; for otherwise said repealing

concur.

TAYLOR, HOCKER, and PARKHILL, JJ., concur in the opinion.

(129 La. 492)

No. 19,110.

IBERIA, ST. M. & E. R. CO. v. MORGAN'S
L. & T. R. & S. S. CO.

In re MORGAN'S L. & T. R. & S. S. CO.

(Supreme Court of Louisiana. Oct. 16, 1911.)

(Syllabus by the Court.)

1. CERTIORARI (§ 5*)-PROHIBITION (8 3*)INTERLOCUTORY DECISIONS-REMEDY BY AP

PEAL.

The judgments overruling in this case exceptions of vagueness and of no right and no cause of action were interlocutory, and worked no irreparable injury, and are reviewable only on appeal from the final judgment to be rendered, and not by certiorari or prohibition.

[Ed. Note. For other cases, see Certiorari, Cent. Dig. $$ 5, 6; Dec. Dig. § 5:* Prohibition, Cent. Dig. §§ 4-19; Dec. Dig. § 3.*]

2. PROHIBITION (§§ 1, 10*)-Grounds-Want OF JURISDICTION.

Where a court is without jurisdiction, it would impose a hardship and useless expense upon the parties to compel them to litigate to the end, and the law has provided a remedy in the writ of prohibition, which is an order from the appellate court forbidding the court of the first instance "to proceed further in the cause, on the ground that cognizance of such cause does not belong to such court, or that it is not competent to decide it."

[Ed. Note.-For other cases, see Prohibition, Cent. Dig. §§ 1, 37-56; Dec. Dig. §§ 1, 10.* For other definitions, see Words and Phrases, vol. 6, pp. 5668-5674; vol. 8, p. 7767.] 3. PROHIBITION (§ 3*)-NATURE OF REMEDYEXISTENCE OF OTHER REMEDY.

The fact that after an exception to jurisdiction ratione personæ has been overruled, defendant files other exceptions, which are also overruled, does not preclude him from at that time applying for a writ of prohibition, though it would be otherwise in an appealable case, were he then to put the case at issue and wait until after trial on the merits and judgment rendered, since in such case the appeal would afford an adequate remedy, and the trial judge would have no other function to discharge than to grant it. [Ed. Note. For other cases, see Prohibition, Cent. Dig. §§ 4-19; Dec. Dig. § 3.*]

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 46; Dec. Dig. § 48.*] 5. EMINENT DOMAIN_(§ 173*)-VENUE-DOMICILE OF PARTIES-STATUTORY PROVISION.

Section 12 of Act No. 37 of 1877 (defendant's legislative charter), in providing that defendant "shall be sued only at its domicile, except in actions of trespass," was not intended to prohibit the institution of proceedings which are not ordinary suits, but are essentially proceedings in rem in parishes other than of defendant's domicile for the expropriation of property there situated, and of which defendant may be the owner.

[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 473, 474; Dec. Dig. § 173.*]

Application by Morgan's Louisiana & Texas Railroad & Steamship Company for writs of certiorari and prohibition. Application denied, and proceeding dismissed.

Denegre & Blair and Weeks & Weeks, for applicant. Burke & Burke and V. J. Smith, for respondent.

Statement of the Case.

MONROE, J. Plaintiff herein, alleging itself to be duly incorporated, brought suit in August of this year in the district court for the parish of Iberia for the expropriation of a right of way or crossing over a railroad belonging to defendant (relator) at a point within the city of New Iberia, and an order was made fixing the application for hearing upon defendant filed an exception to the jurisdicthe 21st of September. Shortly thereafter tion of the court ratione personæ, alleging that Act No. 37 of 1877, whereby it was incorporated, establishes its domicile in the city of New Orleans, and provides that it shall be sued only there, except in cases of trespass. It further alleged, in effect, that Act No. 182 of 1908, relied on by plaintiff as repealing the provisions of the act of incorporation thus referred to, does not so operate, and, if it does, is unconstitutional, for reasons stated. The exception was argued and submitted on September 19th, and the court adjourned until September 21st, when it was overruled, to which action counsel for

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes