The questions to the witness Banks, tend ing to show that the superintendent, Brown, was not familiar with the working inside the mines, should have been excluded, as Brown's superintendence was shown by the evidence to relate only to the work outside the mines. The testimony of the witness Banks as to the proper way to drive a heading, and as to the manner in which this had been done, should have been excluded. In the first place, the witness was not shown to be an expert. In the next place, this testimony related to work done by Jetton and Sharrat, after the injury, and had no tendency to show whether the failure to prop the place before had any causal connection with, or was due to, Sharrat's incompetency.

The question to the witness Rodgers as to whether Sharrat was (as shown by his work) a careful or a careless miner should have been excluded. The question to be determined was whether he was competent. The judgment of the court is reversed, and the cause remanded.

Reversed and remanded.

DOWDELL, C. J., and DENSON and MAYFIELD, JJ., concur.

BOHANAN v. THOMAS. (Supreme Court of Alabama. April 6, 1909.) 1. VENDOR AND PURCHASER (§ 49*)-CONTRACT -CONSTRUCTION.

A contract reciting that the vendor had sold to the purchaser, for a specified sum payable in notes, land described, and providing that the vendor agreed to erect a frame building on the premises before a designated date, requires the vendor to furnish the materials for the building.

[Ed. Note.-For other cases, see Vendor and Purchaser, Dec. Dig. § 49.*]

2. PARTIES (§ 6*)-PLAINTIFFS-REAL PARTY IN INTEREST.

Under Code 1907, § 2489, providing that actions on contracts for the payment of money must be prosecuted in the name of the party really interested, an action for breach by a vendor of his contract to erect a building on the premises sold need not be brought in the name of the real owner of the contract, but may be brought by the purchaser, though he has assigned the contract.

signed the contract, an action for the vendor's the name of the purchaser for the use of the failure to erect the building must be brought in third person.

[Ed. Note.-For other cases, see Assignments, Cent. Dig. § 202; Dec. Dig. § 121.*] 5. ASSIGNMENTS (§ 121*) - ACTIONS - PLAINTIFFS REAL PARTY IN INTEREST.

In an action by a purchaser for the vendor's breach of contract to erect a building on the land sold, pleas alleging that the purchaser was not, at the commencement of the suit, the beneficial owner of the demand sued on, and that before the commencement of the suit he third person, who was the beneficial owner, had assigned his rights to the demand to a show that the third person was the beneficial owner at the time of the commencement of the suit, so that the suit must be brought in the name of the purchaser for the use of the third person.

[Ed. Note. For other cases, see Assignments, Cent. Dig. § 202; Dec. Dig. § 121.*]

Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.

Assumpsit by James R. Thomas against D. P. Bohanan. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The action was for breach of the following contract:

"Sept. 22, 1902. This agreement, between D. P. Bohanan, of the first part, and J. R. Thomas, of the second part, witnesseth: That the said D. P. Bohanan has sold to said Thomas 80 acres of land [here follows the description] for the sum of $648, to be paid in notes. D. P. Bohanan does agree to erect one boxed plank building, 16x24 ft., with shed room on back side; said building to be covered with board, and floored with rough lumber; said building to be erected by the 25th day of Dec., 1902, unless other agreement shall be made.

"Sept. 22, 1902. Received of J. R. Thomas $50, in payment of land note."

The fifth plea was as follows: "The plaintiff failed to provide the material necessary to build said house."

Plea 7: "Plaintiff is not, and was not at the commencement of this suit, the beneficial owner of the demand sued on, which is evi

denced by the contract in writing, and defendant makes oath that this plea is true." Plea 8: "That plaintiff is not now, and was

To authorize an assignee to sue in his own name, under Code 1896, § 876. providing that contracts for the payment of money are assignable by indorsement, so as to authorize an action thereon by the indorsee, the assignment must be by indorsement.

[Ed. Note. For other cases, see Assignments, Cent. Dig. §§ 200-202; Dec. Dig. § 121.*] 4. ASSIGNMENTS (§ 121*) ACTIONS-PLAINTIFFS-REAL PARTY IN INTEREST.

Where a contract for the sale and purchase of real estate bound the vendor to erect a build

ed all his rights in and to the demand sued on to one Hood, and that said Hood was at the commencement of this suit, and is now, the beneficial owner of the demand sued on, and said contract is evidenced by the contract in writing."

Pleas 7 and 8 were duly verified by the affidavit of the defendant.

The demurrers to pleas 7 and 8 are: “(1) Because the contract is not one on which the

Ala. 143; Id., 17 Ala. 394; Dorsey's Case (Ala.) 39 South. 584.

The cause originated in a justice court, and from a judgment there rendered in favor of the plaintiff the defendants prayed an appeal to a jury. The jury was impaneled by the justice on the day fixed for the hearing, whereupon trial was had, and from a judgment rendered by the justice on the verdict of the jury in favor of the plaintiff the defendants carried the case by appeal to the county court. In that court the plaintiff's motion to dismiss the appeal was granted, and it is from the judgment dismissing the appeal that the defendants have taken an appeal to this court. The ground for the motion was that defendants' appeal from the justice's judgment to the jury was taken and granted without bond being first given as required by section 2687 of the Code of 1896. Upon this it is insisted that the judgment rendered by the justice on the verdict of the jury was void, for want of jurisdiction in that official to submit the case to the jury, and would not support an appeal.

The record shows regularity in all other respects in the proceedings in the justice court. The record also shows that the plaintiff appeared, and entered into trial before the jury, without raising any point in respect to lack of a bond. In short, this question was first presented in the county court. It came too late, and the county court erred in sustaining the motion. Code 1896, § 488; Glaze v. Blake, 56 Ala. 379; L. & N. R. R. Co. v. Barker, 96 Ala. 436, 11 South. 453; Western Railway, etc., v. Lazarus, 88 Ala. 458, 6 South. 877; Walton v. Parker, 114 Ala. 673, 21 South. 826. cited by appellee are not in point. Reversed and remanded.

The authorities

A charge that if defendant trespassed on plaintiff's lands, and did it in a wanton and willful manner, the jury would not be confined to the assessment of actual damages, but could assess punitive damages, not to exceed the amount claimed, was misleading, as leaving the jury with no rule for the guidance of their discretion.

[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 543, 546, 547; Dec. Dig. § 215.*] 5. NEW TRIAL (8 39*)-GROUNDS-MISLEADING CHARGES.

The trial court may set aside a verdict beif convinced that prejudice has resulted therecause of a misleading charge having been given, from.

[Ed. Note.-For other cases, see New Trial, Cent. Dig. 88 57, 58; Dec. Dig. § 39.*]

Appeal from Circuit Court, Limestone County; D. W. Speake, Judge.

Action by Mattie B. Coleman against La Fayette P. Pepper. A judgment for plaintiff was set aside, and a new trial granted, and plaintiff appeals. Affirmed.

Erle Pettus and James E. Horton, Jr.,

for appellant. W. R. Walker, for appellee.

DENSON, J. That exemplary damages are recoverable in this class of actions, when the acts complained of are attended with aggravating circumstances of wantonness or malice, cannot longer be a debatable question in this jurisdiction. Mitchell v. Billingsley, 17 Ala. 391; De Vaughn v. Heath, 37 Ala. 595;

COLEMAN v. PEPPER. (Supreme Court of Alabama. April 2, 1909.) 1. TRESPASS (§ 56*)-To REALTY-EXEMPLARY DAMAGES-AGGRAVATING CIRCUMSTANCES. Exemplary damages are recoverable for trespass to realty, where the acts complained of are attended by aggravating circumstances of

wantonness or malice.

[Ed. Note. For other cases, see Trespass, Cent. Dig. § 144; Dec. Dig. § 56.*]

2. DAMAGES (§ 87*) — PUNITIVE DAMAGES DISCRETION OF JURY.

Punitive damages, being apart from compensation, are not recoverable as matter of right, but their imposition is discretionary with the jury; the discretion being a legal and sound one, and not to be exercised arbitrarily.

[Ed. Note. For other cases, see Damages, Cent. Dig. § 188, 205; Dec. Dig. § 87.*]

etc., Co. v. Dickens, 148 Ala. 480, 41 South. 469. The jury awarded the plaintiff damages to the amount of $311, and there can be no doubt that exemplary damages were assessed. On motion made by the defendant, the verdict was set aside, on the grounds that the damages were excessive and that the court erred in giving a charge requested by the plaintiff. The charge referred to is in this language: "I charge you, gentlemen of the jury, if you find that the defendant did trespass on the lands of the plaintiff, and if you further find that he did it in a wanton and willful manner, then you are not confined to the assessment of the actual

damages sustained, but you may go further and assess punitive damages, not exceeding $1,200." It is argued that this charge is erroneous, as giving the jury a discretionary power in the assessment of damages, "with

In submitting the question of punitive damàges, the court should so charge that the jury

Punitive damages, being apart from com

cited in notes to the text. And this discretion is not an unbridled or arbitrary one, but a legal, sound, and honest discretion; and, after instructing the jury in respect to the elements which must be found to exist to warrant the assessment of such damages, in submitting to the jury the question of imposing punitive damages, the court should always safeguard the submission with such instructions as that the jury will not be misguided, but will be held mindful, in fixing such damages, that they should act with due regard to the enormity or not of the wrong, and to the necessity of preventing similar wrongs, and that, if such damages are imposed, they should be in such an amount (much or little) as, under all the circumstances attending the commission of the wrong, the exigencies of the case, in the sound judgment and discretion of the jury, may demand, in no event to exceed the amount claimed in the complaint. L. & N. R. R. Co. v. Bizzell, supra; 12 Am. & Eng. Ency. p. 54, and cases cited in note 4 to the text; 13 Cyc. 119. The charge in judgment, while it may state the elements which, if found to exist, would form the proper basis for the 5ssessment of exemplary damages in the discretion of the jury (Snedecor v. Pope, 143 Ala. 275, 290, 39 South. 318; White v. Spangler, 68 Iowa, 222, 26 N. W. 85), clearly leaves the jury with no rule whatever for the guidance of their discretion in the assessment of such damages (Alley v. Daniel, 75 Ala. 403; Garrett v. Sewell, 108 Ala. 521, 18 South. 737); and for this reason, while we do not decide that the trial court committed reversible error in giving it, we do hold that the charge possesses misleading tendencies and that it might properly have been refused (A. G. S. R. R. Co. v. Burgess, 119 Ala. 155, 25 South. 251, 72 Am. St. Rep. 943). Furthermore, we entertain no doubt of the right of a trial court to set aside a verdict on account of a misleading charge having been given, if convinced that prejudice resulted from the giving of such charge. Goldsmith v. McCafferty, 101 Ala. 663, 15 South. 244.

The trial court, we think, occupied a more advantageous position than this court does for determining whether or not the jury were misled by the charge given in this case, and we therefore decline to disturb its judgment granting the new trial. It is not necessary to consider the other grounds set down in the motion for a new trial. Affirmed.

JURISDICTION.

At common law certiorari is improper to review proceedings unless they are absolutely void, so that certiorari will not lie to review proceedings in the county commissioners' court to order an election where they were in compliance with the statute.

ING.

[Ed. Note.-For other cases, see Certiorari, Cent. Dig. §§ 33, 41; Dec. Dig. § 28.*1 2. CERTIORARI (§ 1*)-NATURE OF PROCEED"Certiorari" at common law was an original writ issuing out of Chancery, or the King's Bench, commanding agents or officers of inferior courts to return the record of a cause pending before them, so as to give the party more sure and speedy justice.

[Ed. Note.-For other cases, see Certiorari, Cent. Dig. § 1; Dec. Dig. § 1.*

For other definitions, see Words and Phrases, vol. 2, pp. 1035-1040; vol. 8, p. 7598.]

Appeal from Circuit Court, Blount County; John W. Inzer, Judge.

Certiorari by N. C. Cushman against the Court of County Commissioners of Blount County. From a judgment quashing the writ, petitioner appeals. Affirmed.

sought to be quashed and annulled by the cerThe petition leading up to the election

tiorari is as follows: "State of Alabama, Blount County. Commissioners' Court. We, the undersigned, bona fide freeholders, owning a freehold estate in Oneonta precinct, but outside the incorporated town of Oneonta, petition the court of county commissioners of said county and state that we desire an election in such precinct to ascertain whether or not a majority of the qualified electors in said precinct desire or favor a law prohibiting the running at large of stock in said precinct." Then follow the number of names. The court finds in its order that the petition contains a majority of the bona fide freeholders, outside of the incorporated limits of the town of Oneonta, who own a freehold estate in such precinct, and proceeds to order an election to be held at a certain time and place, appointing managers, clerks, and returning officers. The court then proceeds to ascertain all the jurisdictional facts, and to declare the giving of proper notice, a proper canvass of the vote, and the establishment of the district as a stock-law district.

T. B. Russell, for appellant. Ward & Weaver, for appellee.

MAYFIELD, J. The circuit court of Blount county quashed and dismissed appellant's certiorari by which he sought to have the circuit court annul and vacate a proceeding in the

der an election, and declare the result, to es

We are unable to agree with counsel for appellant that the proceedings in the commissioners' court, sought to be quashed and vacated by appellant, were void on their face; but, on the contrary, such proceedings appear to us to be unassailable, and certainly so by the common-law certiorari, which is never the proper remedy unless the proceedings are absolutely void. We find nothing omitted from the proceedings necessary to validity, nor are there any recitals upon the face of the proceedings which contribute to their own invalidity. The proceedings assailed appear to be in strict compliance with the statute providing for the same. Consequently appellant could not have been injured by the order or judgment of the court in dismissing

his certiorari, and the case is affirmed upon the authority of Wilborn v. De Kalb County (Ala.) 46 South. 585, and Brazeel v. Blount County (Ala.) 46 South. 584.

Certiorari at common law was an original

writ issuing out of Chancery, or the King's Bench, directed in the king's name, to the agents or officers of inferior courts, commanding them to return the record of the cause pending before them, to the end that the party may have the more sure and speedy justice before him, or such other justice as he shall assign to determine the cause. Dean v. State, 63 Ala. 153; 2 Bacon's Abr. 165. The judgment of the circuit court is affirmed.

[Ed. Note. For other cases, see Deeds. Cent.

Dig. §§ 267–273, 434-447; Dec. Dig. § 97.*] 4. DEEDS (8 127*) - CONSTRUCTION - ESTATE CREATED "CHILDREN"-"HEIRS."

A deed of gift recited that the grantors, in consideration of love and affection toward their son and his heirs lawfully begotten, granted described lands to the son and his lawful heirs, to have and to hold unto the son and the children of his body, their heirs and assigns, forever. The son, at the time of the execution of vested in the son an estate tail, which was conthe deed, had two children. Held, that the deed verted by the statute into a fee; it being presumed that the word "heirs" was used in the legal sense, excluding one from being an heir of in usual legal acceptation being a word of a living person, and the word "children," though purchase, being equivalent to the word "heirs" or "issue."

[Ed. Note.-For other cases, see Deeds, Cent.

Dig. §§ 358, 359; Dec. Dig. § 127.*

vol. 2, pp. 1116, 1117; vol. 8, p. 7601; vol. For other definitions, see Words and Phrases, 4, pp. 3241-3264; vol. 8, pp. 7677, 7678.]

ty; D. W. Speake, Judge.

Appeal from Circuit Court, Lawrence Coun

Ejectment by W. G. Hodges and another against B. P. Wallace. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

D. C. Almon and Lowe & Tidwell, for appellant. G. O. Chenault, for appellees.

MCCLELLAN, J. Ejectment by appellees against appellant. The decisive question in this case exists in the construction of a certain deed of gift from Daniel W. Hodges

WALLACE v. HODGES et al.

necessary purposes of decision we adopt this skeleton of the deed: * We, Dan

* * to

[Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 241-254; Dec. Dig. § 95.*]

have and to hold unto the said William R. L. Hodges and the children of his body, their heirs and assigns, forever. * * "The appellees contend that, since William R. L. Hodges had, at the date of the execution and delivery of the deed, two children, viz., these appellees, those children took, under the deed, as tenants in common with their

Where the creation of a tenancy in common by deed to one and his lawful heirs is sought to be drawn from the deed, and the intention of the grantor becomes a matter of construction, the omission to name the grantees must be considered in determining the grantor's intention. [Ed. Note. For other cases, see Deeds, Dec. Dig. § 136.*]

below sustained this insistence. The appellant insists that the legal effect of the conveyance, according to the intention of the grantors, was to vest in William R. L. Hodges an estate tail, converted by statute into a fee, in the lands described.

OF GRANTORS.