3. COURTS (8 62*) - STATUTES - REPEAL BY [Ed. Note.-For other cases, see Courts, Cent. Dig. § 207; Dec. Dig. § 62.*] 4. CHATTEL MORTGAGES (812) - PROPERTY SUBJECT TO MORTGAGE-CROPS. A mortgage of crops to be grown in the future does not create a specific lien upon or title to such crops when grown, unless at the time of its execution the mortgagor owned or had some interest in the land upon which the crops were grown; and this rule is not affected by Code 1907, § 4894, since the effect of that section is to transmute into a legal title that which before would have amounted to a mere equitable title or claim, and it does not undertake to make a legal title out of something which before its enactment did not confer any title or claim, either legal or equitable. [Ed. Note. For other cases, see Chattel Mortgages, Cent. Dig. §§ 59, 60; Dec. Dig. 12.*] Appeal from Circuit Court, Franklin County; C. P. Almon, Judge. Action by J. H. McIntosh against Farmers' Union Warehouse Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded. Chenault & Chenault, for appellant. Williams & Jones and B. H. Sargent, for appellee. the journal of the House of Representatives (House Journal, Special Session 1907, p. 254) shows that the vote on the final passage of the bill was, yeas, 65, nays, 0; and the claim is that that vote was insufficient for the constitutional passage of the bill, in that 65 was less than two-thirds of the membership of the House, which was composed of 105 members. To sustain this objection it is necessary to reach the conclusion that the words "each house," as used in section 76 of the Constitution, referred to the entire membership of each house, and that at a special session of the Legislature a bill on a subject other than one designated in the proclamation of the Governor calling such session cannot become a law except by a vote of two-thirds of the members entitled to participate in the proceedings of each house. The court is not advised of any authoritative ruling in this state upon the question thus presented. Similar questions several times have been passed upon in other jurisdictions. Zeiler v. Central Ry. Co., 84 Md. 304, 35 Atl. 932, 34 L. R. A. 469; State v. McBride, 4 Mo. 303, 29 Am. Dec. 636; Southworth v. Palmyra & J. R. Co., 2 Mich. 287; Warnock v. Lafayette, 4 La. Ann. 419; Green v. Willer, 32 Miss. 650; Morton v. Comptroller Gen., 4 S. C. 430, 463. The accepted rule on the subject is thus stated: "For the vote required in the passage of any particular law the reader is referred to the Constitution of his state. A simple majority of a quorum is sufficient, unless the Constitution establishes some other rule; and where, by the Constitution, a two-thirds or threeWALKER, P. J. When this case was call-fourths vote is made essential to the passage ed for trial in the court below the defendant of any particular class of bills, two-thirds or (appellant here) objected to entering upon a trial, on the ground of an absence of authority of law for holding a term of the circuit court of Franklin county at that time, a special term of the court not having been called. The objection was based upon the claim that the act relating to the times of holding the circuit court of that county, approved November 23, 1907 (Loc. Acts, Sp. Sess. 1907, p. 32), pursuant to which the I court was held, is invalid. In support of this objection, it is urged (1) that the act in question was not passed in the manner required by the Constitution; and (2) that, if it was constitutionally passed, it was superseded by the Code of 1907. three-fourths of a quorum will be understood, unless the terms employed clearly indicate that this proportion of all the members, or of all those elected, is intended." Cooley's Constitutional Limitations (7th Ed.) 201. In construing a provision of the Constitution of South Carolina that no law to create a public debt shall take effect until it has been passed "by a vote of two-thirds of the members of each branch of the general assembly," it was said in the opinion in the case of Morton v. Comptroller General, supra: "It [a quorum] is indeed, for all legal purposes, as much the body to which it appertains as if all the component parts were present. Where, therefore, either branch of The objection touching the manner of pass- the General Assembly is spoken of, in the ing the act in question rests upon the claim absence of a clear intent to the contrary, that, relating, as it did, to a subject not des- the quorum of such body must be understood ignated by the Governor in his proclamation as intended. It would follow that provisions calling the Legislature to meet in special ascertaining the mode in which the body session, it was not passed by "a vote of two- should divide, in order to complete action in thirds of each house," within the meaning any given case, whether by a mere majority, of the requirement to that effect of section or by a still greater proportion, must be 76 of the Constitution of 1901. The fact is interpreted primarily as applicable to the brought to the attention of the court that body as legally organized at the time such action is taken. If the rule is the mere ma- | two-thirds of the Legislature" (section 267); jority rule, then a majority of the quorum or under the provision now under considerapresent and acting is intended; if the rule is that of two-thirds, then two-thirds of such quorum must concur for effective action." tion (section 76), requiring "a vote of twothirds of each house" for the passage of a bill at a special session of the Legislature upon a subject other than one designated in [1] The Constitution of this state contains the proclamation of the Governor calling within itself evidence that its makers, in such session. But a still more persuasive using such expressions as the one now un- reason for declining to concur in the conder consideration, tacitly recognized the ex-struction of the language last quoted which istence of the rule of construction stated is contended for in behalf of the appellant in the authorities above cited. The provision (Const. § 52) that "a majority of each house shall constitute a quorum to do business" is to be given such effect, certainly for the ordinary purposes of legislation, that, on a question whether there has been a compliance by either house with a requirement of the Constitution relating to its legislative action, the majority of such house present at the time is to be regarded as the body referred to as one of the branches of the Legislature; in other words, when the Constitution refers to either house of the Legislature, it means no more than a majority of the members of such house present and taking part in its action. [2] In view of the provision above quoted, it could not, with any plausibility, be contended that anything more than the vote of a majority of the quorum present would be required for effective action under the provision that "each house shall choose its own officers, and shall judge of the election, returns, and qualifications of its members" (section 51); or under the provision that "each house shall have power to determine the rules of its proceedings, and to punish its members and other persons for contempt," etc. (section 53); or under the provision that "no bill shall become a law unless on its final passage * * a majority of each house be recorded as voting in its favor," etc. (section 63). If a house having a quorum of its members present is to be taken as the body referred to in the Constitution in the instances where effective action may be taken by a vote of a majority, it would seem that, unless a different meaning is otherwise disclosed, similar language could not be treated as indicating the entire membership of the body in the cases where action is unauthorized unless concurred in by a proportion of the body greater than a majority; as under the provision authorizing the Legislature, "by a vote of two-thirds of each house thereof," to arrange and designate boundaries for the several counties of the state, etc. (section 39); or under the provision conferring upon the Legislature authority, "only by a concurrence of twothirds of the members of each house," to create a debt against the state to repel invasion or suppress insurrection (section 213); or under the provision withholding authority to change the location of certain in this case is found in the fact that in the instances where the framers of the Constitution had it in mind to require a stated proportion of the entire membership of the Legislature to authorize its action in certain matters the purpose was made plain by explicit language. For instance, in the requirement of a favorable vote by "a majority of the whole number elected" to each house for the passage of a bill over the veto of the Governor (section 125); in the provision requiring, for the submission of a proposed amendment to the Constitution, a favorable vote of "three-fifths of the members elected" to each house (section 284); and in the requirement, for the passage of an act or resolution for calling a convention for the purpose of altering or amending the Constitution, of "a vote of a majority of all the members elected to each house" (section 286). It is not to be supposed that in the provision of section 76 of the Constitution for "a vote of two-thirds of each house" there was involved a requirement of a vote of that proportion of the entire membership of each house when it is seen that in the cases where a similar requirement was intended explicit language to that effect was used. The language in question in section 76 cannot be given the same meaning as would have been expressed if in that section language had been used similar to that found in sections 125, 284, and 286 of the Constitution. With this disclosure of the modes of expression adopted by the framers of the Constitution in the varying provisions made on the subject of the requirements for legislative action in different matters, their failure, in section 76 of the Constitution, to express a purpose to require a two-thirds vote of the entire membership of each house for the passage of a bill at a special session of the Legislature upon a subject other than one designated in the proclamation of the Governor calling such session is enough to warrant the conclusion that the requirement in question was complied with by a favorable vote on such a bill of two-thirds of a quorum of each house. [3] The act of the Legislature, which is brought into question in this case, is the act "to amend an act to amend section 909 of the Code of 1896, approved February 28, 1903, so far as the same relates to the times of holding the circuit courts of Franklin 1907. The appellant contends that that act, having the effect of amending section 909 of the Code of 1896, was superseded by the adoption of the Code of 1907, its provisions. not having been embodied in section 3241 of that Code, which prescribes the times for holding the circuit courts in the Eleventh judicial circuit. The answer to this contention is found in the provision of section 2 of the act to adopt the present Code that "no act passed on or after the ninth day of July, 1907, shall be repealed or affected in any manner by the adoption of this Code." Gen. Acts 1907, p. 499. In that provision there is no exception of acts having the effect of amending the Code of 1896. The act in question having been passed after the 9th day of July, 1907, it was not affected by the adoption of the present Code. (1 Ala. App. 376) ASSETS-WRONGFUL DEATH-DAMAGES-AP- The damages recoverable under Code 1907, EXEMPLARY The damages recoverable under Code 1907, 8 2486, giving a personal representative a right of action for wrongful death, are punitive and exemplary. The purpose of the statute is the preservation of life, regardless of the pecuniary value of a particular life to the next of kin un ery must be measured by reference alone to the quality of the wrongful act or omission, and the defendant's degree of culpability. [Ed. Note.-For other cases, see Death, Cent. Dig. § 98; Dec. Dig. § 93.*] 3. DEATH (§ 101*)-DISTRIBUTION OF AMOUNT RECOVERED-COSTS. [4] The claim of the plaintiff (the appel-der the statutes of distribution, and the recovlee here) to the seed cotton alleged to have been converted rested upon a crop mortgage executed to him by one Alex. Bankhead on the 11th day of March, 1909. At that time the mortgagor did not own any land, and did not have any land rented or contracted for upon which to make a crop during that year. The cotton in question was part of the crop made by Bankhead in the year 1909 on land which he rented after the date of the execution of the mortgage. It is a familiar rule in this state that a mortgage of crops to be grown in the future does not create a specific lien upon or title to such crops when grown, unless, at the time of the execution of the mortgage, the mortgagor owned or had some interest in the land upon which the crops were grown. Windham & Co. v. Stephenson & Alexander, 156 Ala. 341, 47 South. 280, 19 L. R. A. (N. S.) 910, 130 Am. St. Rep. 102; McNeill v. Henderson & Hill, 55 South. 269. It was no part of the purpose of section 4894 of the Code to change this rule. The effect of the enactment of that statute was to transmute into a legal title that which before would have amounted to a mere equitable title or claim. That statute does not undertake to make a legal title out of something which, before its enactment, did not confer any title or specific claim, either legal or equitable. It does not purport to give to an attempted conveyance of a mere possibility or expectancy, not coupled with any interest in or growing out of property, the effect of a conveyance of legal title to the property mentioned when it might thereafter come into existence or be acquired. It dealt with property interests already fully recognized in courts of equity, not with something which neither law nor equity took notice of as property subject to conveyance. The objection made by the defendant to the introduction of the mortgage in evidence should have been sustained. Reversed and remanded. In cases where the estate of the deceased has no other assets, the personal representative is entitled to his reasonable counsel fees and costs out of the sum recovered by him in a suit brought under Code 1907, § 2486, giving a personal representative a right of action for damages for the wrongful death of his intestate. Dig. 88 132-140; Dec. Dig. § 101.*] FUL PARTY. Courts of equity may, in proper cases, tax the cost of the appeal or any portion thereof upon the parties successful in the appeal. Dig. 88 869-876; Dec. Dig. 230.*] [Ed. Note. For other cases, see Costs, Cent. 5. JUDGMENT (8 883*) - SET-OFF OF JUDG MENTS-COSTS. Where the Supreme Court on appeals by defendant from judgments for plaintiff render ed judgments for costs against the plaintiff and in favor of defendant, and defendant, on failure of the plaintiff to pay them, itself paid two of the judgments under compulsion of law, and another unpaid judgment was its own for the use of parties entitled to costs, the fact that defendant had paid two of the judgments does not cancel them, but they are absolutely owned by the defendant, and subsist as legal, valid judgments in its favor against the plaintiff. Cent. Dig. § 1670; Dec. Dig. § 883.*] MENTS COSTS. A nonresident administrator of an insolvent estate, himself possessing no assets in this state, recovered judgment for damages in an action for wrongful death of his intestate under Code 1907, § 2486, which exempts damages so recovered from liability for the debts of the intestate, and upon successive appeals to the Supreme Court, judgments for costs were rendered against him in favor of the defendant, and, on his failure to pay such judgments, two of them were paid by defendant under compulsion of law, and it was liable under the statutes for the other. Code, 5861, provides that judgments may be set off against each other by motion. Held, that the defendant on motion was entitled to set off the three judgments for costs against plaintiff's final judgment. [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1670; Dec. Dig. § 883.*] Appeal from Circuit Court, Escambia County; J. C. Richardson, Judge. their imposition to stand as an example to deter others from the commission of mortal wrongs, or to incite to diligence in the avoidance of fatal casualties. The purpose being the preservation of human life, regardless of the pecuniary value of a particular life to next of kin under statutes of distribution, the admeasurement of the recovery must be by reference alone to the quality of the wrongful act or omission, the degree of culpability indicated in the doing of the act, or in the omission to act as required by the dictates of care and prudence, and without any reference to or consideration of the loss or injury the act or omission may occasion Action by W. L. Perkins, as administrator of the estate of Isaac R. Dykes, deceased, against the Louisville & Nashville Railroad Company. Judgment for plaintiff in the court below, and defendant's motion in that court to set off against plaintiff's final judgment the judgments for costs rendered in its favor against plaintiff on appeals taken to the Supreme Court during the litigation was denied, and defendant appeals. Revers- the living." L. & N. R. R. Co. v. Tegner, ed, and order made offsetting and crediting the amounts of defendant's judgments against the plaintiff's final judgment. See, also, 165 Ala. 471, 51 South. 870. M. A. Rabb, for appellant. Powell & Hamilton, Webb & McAlpine, and Leigh & Leigh, for appellee. DE GRAFFENRIED, J. Section 2486 of the Code of 1907 provides that "a personal representative may maintain an action and recover such damages as a jury may assess, for the wrongful act, omission, or negligence of any person or persons, or corporation, his or their servants or agents, whereby the death of the testator or intestate was caused, and the damages recovered are not subject to the payment of the debts or liabilities of the intestate or testator, but must be distributed according to the statute of distributions." [1] The damages recovered under the above act do not go to the husband, wife, or child of the deceased as such, but become assets of the estate, not subject to the payment of debts, and must be distributed "as personalty of an intestate is now distributed." S. & N. R. R. Co. v. Sullivan, Adm'r, 59 Ala. 272. "We say it goes to the estate of the deceased, for otherwise the limitation 'shall not be subject to the debts of the deceased' would not be necessary. Only property belonging to the estates of decedents is 'subject to the payment of their debts.'" S. & N. R. R. Co. v. Sullivan, supra. "The estate consisted for the most part of damages recovered by A. L. Griswold, as administrator of said Charles, for the wrongful act or omission of a third party resulting in his death. These damages were assets only for the purpose of distribution. They were not subject to the payment of debts or liabilities of the decedent, and were to be distributed according to the statute of distribution of force at the time the claim for damages accrued." Griswold v. Griswold, 111 Ala. 572, 20 South. 437. [2] The damages recoverable under the above section are punitive and exemplary"punitive of the act done, and intended by 125 Ala. 593, 28 South. 510; A. G. S. R. R. Co. v. Burgess, 116 Ala. 509, 22 South. 913; Railroad Co. v. Freeman, 97 Ala. 296, 11 South. 800. Only the personal representative can sue for damages under the statute. Railroad Co. v. Sullivan, 59 Ala. 272; Lovell v. De Bardlaben, 90 Ala. 13, 7 South. 756. Damages under this section are such as the jury may deem just, and the purpose of the enactment of the statute was to prevent homicides. S. & M. R. Co. v. Shearer, 58 Ala. 672; S. & N. R. R. Co. v. Sullivan, 59 Ala. 272; E. T. V. & G. R. Co. v. King, 81 Ala. 177, 2 South, 152; Buckalew v. T. C. I. & R. Co., 112 Ala. 146, 20 South. 606; Freeman's Case, 97 Ala. 289, 11 South. 800. As the personal representative of the deceased only can sue for the damages recoverable under the act, and as it is an act which was adopted by the state as a part of its public policy in the prevention of homicides, it was, manifestly, not the purpose of the Legislature to require the personal representative to bear the expenses incident to a suit brought for the recovery of damages under the statute out of his personal funds. While the statute exempts the recovery from the payment of the debts of the decedent and directs that it shall be distributed according to the statute of distribution, it does not exempt it from administration as in the case of exemptions allowed the widow and minor children out of the estate of a deceased person. When this act was passed by the Legislature, its members knew that they were providing a remedy for 'the prevention of homicides" applicable to all persons, those possessing estates and those without property, and to hold that the party named in the act, "the personal representative of the deceased," must, out of his own funds, if the deceased left no estate, bear the burden and expenses of a suit to enforce the penalty recoverable under and by virtue of the act, would be to so burden the act and so narrow it as to defeat the purposes for which it was called into existence. "The costs, fees, and expenses attending a litigation for the benefit of particular heirs, legatees, next of kin, or other persons, should be allowed, if at all, as against their | tiff's judgment and that they be applied as own particular funds or interests, proportion- credits in defendant's favor thereon. The ately or wholly, as the case may be, rather court denied the motion, and the defendant than out of the general estate." 18 Cyc. p. appeals. 280 (c), and authorities cited. "The costs and expenses of litigation respecting a particular fund in the hands of an executor, between the specific legatee, the residuary legatee, and the heir at law, and also the commissions of the executor for receiving and disbursing the money, are properly payable out of the fund, and not out of the estate generally." Johnson v. Holifield, 82 Ala. 123, 2 South. 853. [4] Section 5861 of the Code provides that judgments may be set off against each other by motion. While the Supreme Court, like courts of equity, may, in proper cases, tax the costs of the appeal or any portion of the same, upon the party successful in the appeal, in the present instance all of the costs of each appeal were taxed against the plaintiff. [5] The judgments of the Supreme Court [3] It is therefore apparent that, certainly were, in reality, judgments of the defendant in cases where the estate of the deceased has no other assets, the personal representative is entitled to his reasonable counsel fees and costs out of the sum recovered by him in a suit brought under and by virtue of the statute, and which were incurred by him in said suit. There is no contention that the costs hereinafter referred to were improperly incurred. The facts are that the plaintiff, W. L. Perkins as administrator of the estate of Isaac R. Dykes, brought a suit against the defendant, the Louisville & Nashville Railroad Company, on September 1, 1905, under the above section of the Code, for damages, for causing the death of plaintiff's intestate. Upon the trial of the case, there was a verdict for the plaintiff and a judgment thereon, and the defendant appealed the case to the Supreme Court. The Supreme Court reversed and remanded the cause and entered up a judgment for the costs of the appeal against the plaintiff. The case was then again tried, with a verdict for the plaintiff and judgment thereon, and the case was again appealed to the Supreme Court. The case was again reversed and remanded, and another judgment was rendered against the plaintiff for the costs of the appeal. The case was again tried, with a verdict for the plaintiff and a judgment thereon. The case was again appealed by the defendant to the Supreme Court, the judgment was again reversed, and another judgment for the costs of appeal rendered against the plaintiff. The case was again tried and a verdict was rendered in favor of the plaintiff, and from this judgment no appeal was taken and the last judgment stands as a valid subsisting judgment in favor of the plaintiff against the defendant. The plaintiff is a nonresident, the estate of which he is the administrator is insolvent, and he possesses no property in Alabama. He failed to pay either of the above judgments for costs, the defendant paid the first two, and the other remains unpaid, and will have to be paid by the defendant unless it finds a remedy and relief in this proceeding. Such being the situation of the parties, the defendant filed a motion in the court in which the judgment in favor of the plaintiff against it was rendered, praying that the three judg against the plaintiff, for the use of the parties in whose favor the various items of costs were taxed. Having paid two of the judgments, the defendant is the absolute owner of them, and the one remaining unpaid was its judgment for the use of the parties entitled to the costs. The fact that defendant, under the compulsion of the law, paid two of the judgments does not cancel them, and they still subsist as legal, valid judg ments in favor of the defendant against the plaintiff. This proposition was expressly determined by the Supreme Court in the case of Montgomery v. Montgomery, 20 Ala. 350, in which the following language is used: "The plaintiff in the execution, therefore, becomes immediately liable for all the costs created by him upon a return of his execution against the defendant 'no property,' and execution against him may be had to enforce this liability. Being then liable, his payment only extinguishes this liability, but does not in any manner affect his rights against the defendant. They remain the same, and an alias execution may be issued to enforce them." It is therefore evident that if the plaintiff had paid the three judgments rendered by the Supreme Court against him as administrator of his intestate, he would be allowed, upon a settlement with the distributees of the estate, a credit for the amount so paid by him out of the sum recovered by him against the defendant. It is also evident that the defendant has three valid subsisting judgments of the Supreme Court in its favor against the plaintiff as such administrator, not upon any indebtedness of his intestate, but for its costs, adjudicated to it, in the litigation which has finally resulted in the judgment against the defendant. "The courts have power to order the set-off of mutual judgments when equity and justice will be promoted thereby, thus extinguishing both judgments, if they are equal in amount, or, if they are unequal, satisfying the smaller judgment in full and the larger pro tanto." 23 Cyc. p. 1478 (e). "A judgment for costs only may be set off against a judgment recovered by the adverse party, provided the costs are liquidated or taxed at the time, and that they belong |