Rakey, C. J.:
As shown by the preceding statement, this is an action instituted in the Circuit Court of Duval county in this State on a judgment recovered by James S. Wight-man, suing for the use of James and Lucetta Marcher, [24] against John S. Sammis in the Supreme Court of the city and county of New York in the state of New York.
The assignments of error are as follows: 1st. Sustaming the demurrer to the 2d. 3d and 4th pleas filed December 7th, 1884; 2d. Sustaining the demurrer to the 2d and 3d amended pleas filed November 9th, 1886; 3d. Sustaining the demurrer to the 4th and 5th pleas filed November 17th, 1886; 4th. The refusal to permit defendant to file the plea of plene administramt, offered January 11th, 1887; 5th. The refusal to charge the jury as requested by defendant; and, 6th. Entering the stated judgment.
It may be safely asserted that where a final judgment has been recovered against a person in a court of one state, and an action is brought on that judgment in a court of another state, the question of the former tribunal’s jurisdiction of the person sued is open to inquiry and adjudication in the latter court; but where the former tribunal has acquired jurisdiction of the person of the defendant against whom it rendered judgment, its adjudication of the merits of the controversy, assuming always that the court had jurisdiction of the subject-matter of the suit, is conclusive upon the courts of a sister state. These principles have been established with reference to the provisions of Section 1 of Article IY of the Constitution of the United States, that “full faith and credit shall be given in each state to the * * judicial proceedings [25] of any other State;” and “Congress may by general laws prescribe the manner in which such proceedings shall be proved and the effect thereof,” and those of the act of Congress thereunder, Sec. 905 R. S. U. S., ed. 1878, prescribing the mode of authenticating such proceedings, and that “judicial proceedings so authenticated, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from which they are taken.” These principles are sustained by the following authorities: Braswell vs. Downs, 11 Fla., 62; Drake vs. Granger, 22 Fla., 348; Freeman on Judgments (4th ed.), 550-556; Black on Judgments, Secs. 856, 857, 867, 883, 889, 894-897, 898; Miles vs. Duryee, 7 Cranch, 481; Hampton vs. McConnell, 3 Wheaton, 234; McElmore vs. Cohen, 13 Peters, 312; Christmas vs. Russell, 5 Wall., 290; Board of Public Works vs. Columbia College, 17 Wall., 251; Gilpin vs. Page, 18 Wall., 320; Thompson vs. Whitman, 18 Wall., 447; Knowles vs. Gas Light Co., 21 Wall., 453; Maxwell vs. Stewart, 22 Wall., 77; Wilson vs. Bank, 6 Leigh, 570. We are not to be understood to admit that the immunity against collateral attack which the judgment sued upon enjoys in the second jurisdiction, includes exemption from assault where, although jurisdiction of the person has been obtained, there has been fraud upon the person against whom the judgment was rendered, in the circumstances of taking the same or the entry upon trial, and for which collateral relief could have been granted in the first jurisdiction; [26] Rogers vs. Gwin, 21 Iowa, 59; Pearce vs. Olny, 20 Conn., 544; Dobson vs. Peace, 1 Duer, 144, S. C, 12 N. Y., 165; Freeman on Judgments, Secs. 492, 576; Black on Judgments, Secs. 373, 916; or that there may not be other cases, not involving a consideration of the merits of the controversy, in which such immunity does not exist.
It is also true, and reasonably so, that where the party sued undertakes to assail by plea the jurisdiction over him of the court of the sister state in which the judgment sued on was obtained, the plea must negative by certain and positive averment every fact upon which such jurisdiction can be legally predicated. If by any reasonable intendment the facts alleged in the plea can exist, and the court rendering the judgment sued on still have had jurisdiction, the plea is bad. Black on Judgments, Sec. 898; Freeman on Judgments (3rded.), Sec. 455 (4th ed.), Sec. 461; Shumway vs. Stillman, 4 Cowen, 292; Starbuck vs. Murray, 5 Wend., 148; Smith vs. Rhoades, 1 Day, 168; Moulin vs. Trenton Mutual Life & Fire Ins. Co., 24 N. J. (Law), 222; Latterett vs. Cook, 1 Iowa, 1; Struble vs. Malone, 3 Iowa, 586; Welch vs. Sykes, 3 Gilman, 197; Puckett vs. Pope, 3 Ala., 552; Barkman vs. Hopkins, 11 Ark., 157, 168; Williams vs. Renwick, 52 Ark., 160; Price vs. Ward, 25 N. J. (Law), 225; Long vs. Long, 1 Hill, 597.
The test of these principles is to be applied to the pleadings before us; but before doing so, the observations to be found in the next succeeding paragraph are necessary.
[27] It is true that when the demurrer to the first set of pleas was put in, the second count of the declaration had not been filed. This count was filed October 28, 1886, or two days after such demurrer, but when the demurrer was heard, November 5, 1886, seven days had passed since the filing of the second count, and consequently under Section 98, page 834, McClellan’s Digest, the pleas referred to stood as pleaded to the new count, and the demurrer was applicable to them in their relation to the new count. The statutory provision referred to is, that when any amendment of any pleading is allowed, the opposite party shall be bound to plead to the amended pleading within two days after the amendment, unless otherwise ordered by the court; and in case the amended pleading has been pleaded to before amendment, and is not pleaded to de now within two days after amendment, or within such other time as the court may allow, the pleadings originally pleaded thereto shall stand and be considered as pleaded in answer to the amended pleadings. The new count was an amendment of the declaration, and there was no special order as to pleading to it.
Applying the test of these rules to the pleas as applicable to the first count of the declaration, we are entirely satisfied of the insufficiency of the 2nd and 3rd pleas filed December 7, 1885, and of the 2nd plea filed November 9, 1886, and of the 4th plea filed on the 17th of the same month. Though the first and second of these four pleas state that there was no service on John S. Sammis, the intestate, they fail alto. [28] gether to exclude the fact that he nevertheless may have appeared to the action in person or by attorney. The absence of service of summons is not inconsistent with the existence of such appearance. The same observations are also true of the third of these pleas. The assertion in the first and third, that he did not have his day in court, and in the latter, that the court had no jurisdiction of his person, are mere allegations of conclusions of law, having no other basis of fact presented by the plea than the averment of the respective pleas that there was no service of the summons. What a pleader’s idea may be as to what facts would have given the intestate his day in court, or the court jurisdiction of his person, can not be known by the judicial mind unless he states them in his pleading. He has failed to do so or to state that the intestate did not appear to the action, which appearance would have given jurisdiction and secured a day in court. The fourth of the above pleas, in so far as it can be said to question the New York court’s jurisdiction of the intestate, is also subject to the above observations as to the absence of any allegation that the intestate did not appear to the action, and is as deficient in this respect as the three other pleas.
In so far as the first of the pleas discussed in the preceding paragraph affirms that the intestate was not indebted to the plaintiff in the judgment sued on, the authorities all hold that the fact of the indebtedness is concluded by that judgment. It belongs to the merits of that controversy, and has been adjudicated, [29] and is not open in or to the courts of this State. As to the assertion that no legal judgment has been rendered, and the charge of fraud, it is necessary to say nothing, in addition to what has been advanced, other than that no fact evidencing either has been alleged.
This leaves nothing of these pleas, in so far as they are applicable to the first count, undisposed of except certain features of the fourth plea. That plea denies that the intestate made the note declared on, and asserts that it was not produced or filed in the New York cause. Such matters do not go to the jurisdiction, but the former of them, as is said above of one feature of the first of these pleas, is strictly part of the merits of the complaint or controversy which the intestate was summoned to answer, and the latter pertains to New York procedure, and does not fall within that class of cases to which Rogers vs. Given, and others cited with it, supra, belong, and in -whose favor a reservation has been made by us. If the law of New York makes the filing of the note sued on in the case an essential to the validity of the judgment by default, or under such law the absence of such filing renders the judgment void there, that is a fact which is not, but should have been, set up in the plea. If the absence of such filing does not render the judgment void there, or, in other words, if, the court having jurisdiction of-the person of the intestate and the subject-matter of the suit, the judgment is valid there, it is valid here. Black on Judgments, Sec. 859-861, 867-881, 889; Renard vs. Abbott, 116 U. S., 277; Ritter vs. Hoffman, 35 [30] Kansas, 215. In the absence of an averment that such was the law of Hew York, the demurrer does not admit that it was the law there. The laws of our sister states are facts to be pleaded and proved like other facts. Summer vs. Mitchell, 29 Fla., 179, 10 South. Rep., 562; Tuten vs. Gazan, 18 Fla., 751; Hanley vs. Donoghue, 116 U. S., 1, 5 et seq. We do not take judicial notice of them; nor is the view, which has been adopted in some states, (Paine vs. S. I. Co., 11 R. I., 411; State vs. Hinaman, 27 Penn.. St., 479; Rae vs. Hurlburt, 17 Ill., 572; Black on Judgments, Sec. 860) as ground for taking such notice in cases of the character now before us, that the Supreme Court of the United States takes the same notice on writs of error to a state court in- those cases, correct. It does not take such notice; on the contrary, its doctrine and practice is not to take judicial notice of the law of another state, not proved in the court of the state in which the suit or the judgment was brought and made a part of the appeal record, unless the latter court takes such notice by the local law of that state. Hanley vs. Donoghue, supra. What we have said of the latter of the above features of the plea is also true of its statements that the judgment was entered on proof of the service of the summons and complaint made by affidavit of Frederick B. Wightman, and his affidavit ratifying the complaint as to the intestate’s having made the note. In the absence of proper averments setting up the illegality of the Hew York judgment under the law of that state for the causes mentioned [31] in the plea, if not for other reasons, the assertion of a fraud must be regarded as the allegation of a mere conclusion of law'.
There is but one aspect in which it can be said that the preceding views would not be applicable to the preceding pleas when considered in their relation to the second count of the declaration. Whereas, the copy of the New York judgment filed November 2d, 1885, with the first count, is not a part of that count, the second count makes the transcript of the New York proceedings filed with it October 28th, 1886, a part of the latter count, by the use of apt words, as follows: “which is herewith filed as a part hereof, marked exhibit A.” The act of 1828, McClellan’s Digest, Sec. 30,' p. 817, and R. S., Sec. 1057, provides that all bonds, notes, bills of exchange, covenants and accounts, upon which suit may be brought, or a copy thereof, shall be filed with the declaration, and in Hooker vs. Gallagher, 6 Fla., 351, it was properly held that a copy of a note which was filed with the declaration without any words purporting to make it a part of the pleading, was not a part thereof, and was not reached by demurrer. Without laying any stress upon the fact that fhis cause of action is not among those designated by the statute, we are unable to see that the quoted words of the declaration have not made it a material part of the second count to be considered in judging the pleas, and viewing them as having done so, we think its effect is to limit the scope of the allegation that the New York court “had jurisdiction of the parties” to an assertion that jurisdiction was obtained [32] by the means shown by such transcript, which was-“by delivering and leaving with the defendant, John S. Sammis, personally, true copies” of the summons- and complaint, on October 17th, 1879, at the locality stated in the city of New York. Giving it this effect it could not be said that pleas which properly denied such service would not be sufficient; yet, should we admit that any of the above pleas are, under the view just advanced, so far in accord with the established rules of pleading as to make them good against a demurrer, it would be of no benefit to the appellant, since we find that the first of the pleas filed November 17th, 1886, and numbered “3rd,” is to the effect that copies of the complaint and summons were not delivered to and left with the intestate, John S. Sammis; which plea the plaintiff took issue on, and this issue standing-on trial in Duval Circuit Court, the defendant, or appellant here, had an opportunity to prove that there was no such service as was shown by the transcript; and such issue rendered immaterial, in so far as the second count is concerned, any error there might have been in sustaining- the demurrer to the pleas discussed above; and in view of the absence of any bill of exceptions, it is conclusively presumed that the proof sustained the verdict rendered for the plaintiff. Walter vs. Florida Savings Bank, 20 Fla., 826.
II. The fourth of the pleas filed December 7th, 1885, is in effect that the statute of limitations and non-claim have run against and barred the claim set up; that is-to say, more than one year had elapsed since the-[33] granting of letters of administration on the estate of the defendant, in the Probate Court of Duval county-in this State, and before the presentation of said claims or the commencement of this action.
As a defense under or plea of the statute of non-claim, this pleading is obviously insufficient, since it fails to allege a publication of the notice required by that act, McClellan's Digest, p. 84, sec. 30 (Fillyau vs. Laverty, 3 Fla., 72; Ellison vs. Allen, 8 Fla., 206), and such defect renders unnecessary any discussion of the question whether one year or two yTears is allowed by that act for the presentation of claims.
This, however, does not dispose of the plea, for if it be true that the action was barred, under the general statute of limitations of February 27, 1872, pp. 731-734, McClellan’s Digest, by the lapse, without suit, of one year from the grant of administration, the plea clearly presents this defense and should have been sustained. Section ten of this act prescribes twenty years as the period within which any action on any ■judgment of any court of any state within the United States, must be instituted, that section and others fixing the different limitations which govern other classes of causes of action. The fifteenth section is as follows: “If a person entitled to bring an action die before the expiration of the time limited for the commencement (hereof, and the cause of action survives, an action may be commenced by his representatives after the expiration of that time, and within six months from [34] tlie issuing of letters testamentary or of administration. ■ If a person against whom an action may be brought die before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced against his executors or administrators after the expiration of that time and within one year after the issuing of letters testamentary or of administration.” The question arising upon this section is, does it create an independent, or distinct and substantive limitation Aipon any and all causes of action wiiich may exist against a testator or intestate at his death, and require that action shall be brought thereon against the administrator or executor within one year from the issue of letters testamentary or of administration; and if it does not, what is its effect? If it does, the limitation of one year applies to any and every cause of action, whatever its nature, and whether it be one for which the longest period, twenty years, or the shortest time, two years, has been prescribed by the previous sections of the law, and the executor or administrator can be sued on any cause of action, upon which the statute Avas running but which was not barred at the death of the testator or intestate, within one year after the issue of letters, but he can never be sued on any of them after this period of one year has elapsed. Moreover, if this be true of the second sentence of the section, then the same in terpretation or construction must be given to the first sentence, Avhich governs the bringing of [35] actions by executors and administrators, and the result which follows is that no cause or right of action of which their testators or intestates died seized or possessed, and upon which the statute had begun to run, can be sued on after six months from issue of the letters testamentary or administration.
We do not think this is ¡jjhe purpose or effect of this section; on the contrary, our judgment is, that its purpose was simply to secure the period of six months, and that of one year, according as the case may be, wherever the cause of action is alive at the death of the testator or intestate, and the statute is then running on it, and the period on limitation, applicable to it under other sections of the law, has expired before the issue of the letters, or will expire within less than the period of six months alter such issue, when the right of action is in the decedent, or within less than the period of one year, when the right of action is against the deceased. The sole purpose and effect of the section is to provide for cases in which the right of action existed in or against the. deceased at his death, a¡nd the statutory period controlling resort to the courts for its enforcement, was then running, and might expire either before the grant of administration, or after such grant, and within less than six months, or one year, (according to the class of the case) therefrom. The words “time limited for the commencement thereof,” mean and refer to the time prescribed elsewhere in the statute for bringing the action which may at any time be under consideration, [36] and the words “after the expiration of that time,” not only refer to the stated time, but show that the purpose of the section was to provide only for cases in which an action by or against a personal representative is brought after the period of limitation prescribed for it, counting from the time of its accrual against, or in favor of, as the case may be, the decedent, has expired or run. »
We are aware that a different view has been expressed in this court in the case of Sanderson’s Admrs. vs. Sanderson, 17 Fla., 820, 850. There it is said: “When the statute has not run in the lifetime of the intestate and the cause of action survives then it ceases to run after his death until an administrator is appointed; and upon his appointment, the action under the statute must be brought ‘within one year after the issuing of letters of administration.’ The terms ‘after the expiration of that time,’ in this section are limited by the terms ‘within one year after issuing letters of administration. ’ The terms ‘after the expiration of that time,’ in this section are there to make it clear that even if a greater length of time than the general limitation has expired after the death of the intestate and before letters of administration are issued, yet in cases where the limitation has not operated in the lifetime of the intestate, the time between the death and the issue of letters shall not be estimated.” We do not think the general limitations of the statute cease to run on the death of the testator or intestate; on the contrary, they continue to run, and if [37] more of any such periods than six months, ir cases covered by the first sentence, or than a year, in the other class of cases, remains unexpired at the time of the grant of administration, the general limitations control, and nothing in the section under discussion has any application or effect. The terms, “within one year after issuing letters of administration,” are a limitation upon the words “after the expiration of that time,” in that not more than one year after the issue of letters is allowed for bringing an action where the period of limitation prescribed for the action by the other or general provisions of the statute has expired before the grant of letters, or expires within less than one year after such grant; but the one year provision never has any application or effect except where the general limitation controlling any particular action was running at the death of the testator or intestate and has expired before the grant of letters or within less than one year after such grant. Where the general limitation which was running at such death does not expire within one year after such grant, the action against the administrator may be brought within wdiatever part of the period prescribed by the general limitation may remain unexpired at the time of such grant; and a similar principle is applicable to actions by executors or administrators where the general limitation which was running at the death of the testator or intestate has not expired before the grant or within six months after the grant of letters. The New York judgment having been rendered January [38]*3810, 1880, and the action thereon in Florida having been commenced against the administrator, Sammis, in February, 1884, there still remained nearly sixteen years of the general limitation of twenty years, governing actions on such judgments, and consequently the limitation of one year prescribed by the fifteenth section of the act does not govern the suit now before us; and no publication under the statute of non-claim being shown by the plea, that statute, or the effect of a non-presentation under it, can not be considered.
The views referred to as announced by J ndge Westcott in the case just cited, though concurred in as an abstract proposition by the other justices then constituting the court, were held by them not to be applicable and were consequently not enforced, in that cause. Hence they have not the force of adjudicated law. To the extent and for the reasons indicated above, we are unable to agree with his conclusions, and we find ourselves supported by a similar conclusion reached in other states where the same statutory provision obtains. In California, where the corresponding section is identical with ours, it was said: That section only applies to cases where the statute has commenced to run; 'and that this construction is evident as well from reason as from the language of the section; and that the object was not to curtail, but to prolong the period for suing in the given category. Smith vs. Hall, 19 Cal., 85; Wood’s Cal. Dig., Sec. 24, p. 48. In Nevada, where six months was the general limitation, and three .months of it had run when the debtor died, and about [39] a month after there was administration on his'estate, and seven months later suit was brought, it was said, in Wick vs. O’Neale, 2 Nev., 303, of exactly the same provision (1 Comp. Laws, Sec. 1088), that it beyond all doubt extended the time for the commencement of actions to one year from the time of issuing the letters testamentary in all cases where the person against whom the action may be brought dies before the statute has fully run; and in Richards vs. Hutchinson, 18 Nev., 215, the decision was that the object of the section was to extend the time in certain cases within which actions may be commenced, and that it was not intended to limit the time given by other sections of that act. And in New York, where the same statutory law existed (Sec. 102 Yoorhees’ An. Code), and an action was begun against the administrator after one year from the issue of his letters, but before the expiration of the general limitation applicable to causes of action, six years, it was held that there was no bar, and that it was not intended .that the one year provision should act as a limitation of the other period, but as an enlargement. Scovill vs. Scovill, 45 Barb., 517. See also Harris v. Rice, 66 Ind., 267.
The result of our conclusions, with which, we may remark, the decision in Sanderson’s Admrs. vs. Thomas and Livingston, 17 Fla., 468, does not conflict,, is that the plea considered as one presenting the period of one year from the grant of letters as a bar is insufficient in law, and the demurrer was properly sustained.
[40] III. The first of tlie pleas filed December 7, 1885, and November 9, 1886, do not present new matter, but are pleas of nul tiel record, and the absence of a similiter is no ground for setting aside the trial or arresting judgment. Huling vs. Florida Savings Bank, 20 Fla., 695; Burk vs. Clark, 8 Fla., 9.
IV. The third of the pleas filed November 9, 1886, alleged that Wightman, the plaintiff in the New York judgment, did not sell, assign or set over the judgment for a valuable consideration to James and Lucetta Marcher, and has never done so. It was demurred to and the demurrer was sustained. The second count of the declaration alleges such an assignment of the judgment. The argument advanced in support of the plea, and against the ruling sustaining the demurrer thereto, is, that the real party in interest must bring the suit, and for his own use. and can not bring it for parties not interested.
Under the common law system of jurisprudence, dioses in action are not assignable at law; or, in other words, fhe courts of law do not recognize any transfer or assignment of them, though courts of equity do, and hence the assignee can not, at least in the absence of a new promise to him by the obligor, maintain an action at law on them in his own name, but must sne in the name of the assignor, the obligee in the contract, for the use of such assignee. Barbour on Parties, 42, 44; Hooker vs. Gallagher, 6 Fla., 351; Kendig vs. Giles, 9 Fla., 278; 1 Parsons on Contracts (7th ed.), 223. Statutes, prior to 1881, modified the law rule as
[41] •to certain instruments, but those statutes, whether English or our own, need irot be noticed as they did not include judgments. In 1881 the Legislature enacted that any and all civil actions at law ‘ ‘may be’ ’ commenced, maintained and continued in the name of the real party in interest, but that nothing in the act should be deemed to authorize the assignment of a thing in action not arising out of contract. Chapter 3241, Laws of 1881. See also Section 981, E. S.; Robinson vs. Nix, 22 Fla., 321. In our judgment this statute has not abolished or precluded the use of the common law practice, but merely permits the assignee to sue in his own name, if he sees fit to do so. Its language is simply permissive, whereas that of the New York Code of Procedure, Sec. 111, Wait, p. 111, Yoorhies, p. 89, is that every action must be prosecuted in the name of the real party in interest. We fail to perceive that the action is brought for parties not interested. The plea does not go to the extent of denying that Wightman sold, assigned or set over the judgment to James and Lucetta Marcher, but merely alleges that he did not do so for a valuable consideration. There is nothing in the plea that makes it of the least materiality to defendant whether the assignment was merely voluntary, or for a good or a valuable consideration. No consideration was essential to the transfer as between Wightman and his alleged assignees. Ensign vs. Kellogg, 4 Pick., 1. A voluntary assignee can sue in the name of the assignor. There is in Hooker vs. Gallagher, 6 Fla., 351, and Sinclair vs. [42] Gray, 9 Fla., 71, nothing that conflicts with these conclusions. The demurrer was properly sustained.
V. Even if we treat the “5th” of the pleas filed November 9th, 1886, as a plea of plene administran it, instead of a statement that the administrator has no assets, without showing good reasons for not having any, it is bad. The idea oí plene administramt is not admissible in this State in an action whose purpose is merely to put the claim in judgment. Barnes vs. Scott, 29 Fla., 285, 11 South. Rep. 48; State vs. Crawford, 23 Fla., 289, 2 South. Rep., 371. The last remark is a sufficient disposition of the alleged error of the judge in refusing to permit the filing of a plea of plene administramt which was presented by the defendant on January 11th, 1SS7. It is certainly not error to refuse at any time a plea which is never admissible in the action.
\rI. The failure upon the part of the plaintiff to take any notice of the plea filed November 13th, and numbered 2d, is of no consequence. Its puiqpose was to present an issue as to Sammis, the intestate, having made the note sued on in New7- York, and hence, for reasons indicated in the first subdivision of 'this opinion, the plea was -without merit; and, besides this, its subject-matter was covered by other pleas. Appellant has sustained no harm from its having been overlooked by the plaintiff, if not also by himself. Gregory vs. McNealy, 12 Fla., 588; Walter vs. Florida Savings Bank, 20 Fla., 826.
[43] YII. Another alleged error is as to a refusal of the Circuit Judge to charge the jurv. The charge reads: “Defendant asks the court to charge the jury that unless the evidence shows that the decedent whom the defendant represents in this suit is the person named in the judgment roll introduced in evidence as- defendant therein against’ whom judgment is therein alleged to be entered, plaintiff can not recover in this cause.” The charge is signed and sealed at the foot of it by the judge, and is endorsed on the margin: “Refused; exception taken.” “Which charge,” says, the record, “the court then and there refused to give, to which ruling the defendant excepted, which exception was signed and sealed by the judge. And the jury having heard the charge of the court and argument of counsel, and having considered of their verdict, on their oaths do say.” Then follow the verdict and judgment. As we understand the transcript, all the above matter appears upon the formal extended record of the term of the court. Under the rule which requires that an appellate court shall presume in favor, and not against, the correctness the action of a trial court, and shall not reverse a judgment except for error which is affirmatively shown by the record, and of the uniform enforcement of this rule in declining to consider the refusal of a trial judge to give to the jury the proffered instruction, where there is an entire absence from the appellate record of the testimony adduced on the trial, we are precluded from granting any relief to plaintiff in error on this point. Horn vs. [44] Gartman, 1 Fla., 63; Proctor vs. Hart, 5 Fla., 465; Burk vs. Clark, 8, Ibid, 9; McKay vs. Friebele, Ibid. 21; Miller & Criglar vs. Kingsbury, Ibid, 357; Frisbee vs. Timanus, 12 Fla., 537; Blige vs. State, 20 Fla., 742; Livingston vs. Cooper. 22 Fla., 292; Myrick vs. Merritt, Ibid, 335. But one exception to this rule has been recognized by this court, and that is when an instruction has been given which is clearly irrelevant and calculated to mislead the jury. J., T. & K. W. Ry. Co. vs. Neff, 28 Fla., 373, 9 South. Rep., 653; Fash vs. Clark & Ferris, 8 Fla.. 16. In case of the refusal of the judge to rule at all, as in Keitt vs. Spencer, 19 Fla., 748, stands on a different principle. The action of the judge in refusing the charge must, in the absence of a bill of exceptions showing the facts as they really occurred, be assumed to have been predicated on facts which rendered his action proper. Moreover, the record shows that the judge did in fact charge the jury, as is affirmed by the text of the opinion in Duggan vs. State, 9 Fla., 516. in which it was held that different language did not show that they were charged on the law of the case; and though the charge may have been oral, we do not wish to be understood as admitting that it is not to be presumed that that charge covered the refused instruction. Southern Express Co. vs. Van Meter. 17 Fla., 783. In disposing of the point as we have, it is not our purpose to decide that there has been a compliance with the doctrine of Myrick vs. Merritt, 22 Fla., 335, as to special bids of exceptions [45] (see also Southern Express Co. vs. Van Meter, 17 Fla., 783, and Potsdamer vs. State, Ibid, 893), or that the exception to the charge is otherwise properly authenticated, but we leave this question open.
VIII. The last error assigned is, that the court erred in entering the judgment in this cause, the same not corresponding with the pleadings, or being authorized thereby. The action is against the administrator on a cause of action which accrued against the intestate, and the judgment is in the usual form of a judgment de bonis testatoris. In so far as there were issues of fact, the requisite proof of all material facts, including that of New York law, is conclusively presumed to have been made. Dorman vs. Bigelow, 1 Fla., 281. These observations, with what has been said before, cover the entire case.
The judgment is affirmed.