ty from the owners to sell, the question whether the evidence of authority was sufficient to relieve defendant from the penalty was exclusively for the jury.

3. Where several tenants in common sued to recover the statutory penalty for cutting trees on their land, and on the trial one of the plaintiffs testified that he did not ask the full penalty, but only what was fair, and it further appeared that offers to accept a small sum in settlement had been made, and that two of the plaintiffs were aware of the cutting when partly done, and indirectly led defendant to think they approved, the evidence justified a verdict for less than the statutory penalty.

4. Where, in an action by joint tenants for a penalty for cutting trees on their land, there was evidence showing that some of the plaintiffs were estopped from recovering the full penalty, while others were not, a verdict for the plaintiffs generally for less than the full penalty was proper, since, the right of action being joint, the assessment of damages must be joint.

Appeal from circuit court, Copiah county; Robert Powell, Judge.

Action by A. E. Haley and others against John G. Taylor to recover the statutory penalty of $15 per tree for 500 trees cut on their lands. There were verdict and judgment for plaintiffs for $91.25, from which plaintiffs appealed because full penalty was not allowed. Affirmed.

R. N. Miller, for appellants. R. P. Willing, Jr., for appellee.

TERRAL, J. Eight tenants in common (among them three females and two minors) brought an action for the statutory penalty of $15 a tree for cutting and removing from their lands 500 pine trees. The defendant pleaded that he had cut down and removed from the lands of plaintiffs 365 pine trees, but he had done so upon a purchase of them from George Bennett, the sole tenant on the place, who claimed authority to make the sale, and the defendant believing him to have such authority. The tenants rested their case upon the plea of defendant. The defendant showed that George Bennett was in possession of the locus in quo, and had been in possession thereof for nine or ten years, under a contract of rent or purchase, and that Bennett claimed to be authorized by the Haleys to sell said timber to be sawn into lumber, partly for the use of the place, and partly to have the advantage of a market while the defendant's sawmill was near by, and that, believing such authority, he cut and sawed into timber 365 trees. Albert Haley, one of the adult tenants in common, and who attended to the management of the place, said in his testimony before the jury that he was not demanding the statutory penalty, and that all he wanted was whatever might be fair and just. It was shown that he had offered to take $300 in compromise of the claim, and had consented that his brother should compromise it at $200. There was evidence also tending to show that. after Taylor had cut a small part of 28 So.-48

the timber, two of the plaintiff's became acquainted with the fact, and made no claim to the statutory penalty, but indirectly led Taylor to believe that his cutting of the timber was satisfactory to them. The plaintiffs recovered a verdict for $91.25, and had judgment therefor, but take this appeal because the statutory penalty was not given to them. It is strenuously argued that the claim of authority of George Bennett to sell the plaintiffs' timber, of itself, even if believed by Taylor, was incompetent to go to the jury on the question of good faith, or for any purpose whatever, and that, if the right to the penalty sued for of some of the co-tenants was affected by any conduct inducing Taylor to believe that the cutting of the timber was satisfactory to them, yet the other co-tenants were entitled to recover their portion of the penalty, by a peremptory instruction to the jury.

Upon the question of the good faith of Taylor in cutting timber from the plaintiffs' lands, we think that the declarations of George Bennett of his authority to sell the timber, and the evidence of the sale of the same by Bennett to Taylor, were competent evidence to go to the jury; and whether it be sufficient to protect the defendant against the collection of the penalty is alone for the jury. Clark v. Field, 42 Mich. 342, 4 N. W. 19.

The right of action of co-tenants for trespass is a joint right, and whatever affects the right of one to recover will affect in like manner the right of each and all the others. The question of damages which any one of them may recover is the question to which the others will be limited. The assessment of the damages must be joint, and cannot be severed by the jury. Merrill v. Inhabitants of Berkshire, 11 Pick. 269, 274; Freem. Co-Ten. 352; Bradley v. Boynton, 22 Me. 287, 39 Am. Dec. 582. It would be incongruous to allow in the same action, with a single count, one of the cotenants to recover $15 per tree, and another one less than 50 cents per tree. Albert Haley, in his evidence before the jury, led them to believe that he only wished for a fair and just sum as damages, and other evidence in the case supported the jury in not affixing the statutory penalty, and we think the matter is settled by the jury. The verdict is reasonable and is supported by evidence, and the judgment is affirmed.

(77 Miss. 727)

ILLINOIS CENT. R. CO. v. JOHNSON. (Supreme Court of Mississippi. May 7, 1900.) DEATH-STATUTE-ACTION BY SISTER-ILLEGITIMATE SISTER.

Since Acts 1898, p. 82, giving a sister or brother a right of action for the wrongful or negligent death of a sister or brother, should be strictly construed as in derogation of the common law, it does not give a right of action to an illegitimate sister.

Action by Sophronia Johnson against the Illinois Central Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

A. C. McNair, for appellant. Cassady & Cassady and P. Z. Jones, for appellee.

CALHOON, J. Under the laws of this state, can the illegitimate half-sister bring an action for damages against a railroad company for negligently causing the death of her illegitimate half-sister? Dora Beard, a young woman of illegitimate birth, was killed in the incorporated municipality of Brookhaven by the employés of the appellant company, by what is known as a "kicking switch." Sophronia Johnson, the appellee, was the illegitimate half-sister of Dora Beard. They were both the offspring of the same mother by different fathers, and Sophronia brought this action, and recovered damages.

We look, first, of course, to the common law, and we cannot better define the condition of the deceased, or the rights of plaintiff, than we find in the brief of her accomplished counsel, who say: "At common law they [illegitimates] were the children of nobody, not even their own mother, and had no kindred. They could inherit nothing, nor could any one inherit from them, save their own legitimate offspring. They were the beginning of their race; not even kin to human kind; monsters, so to speak, conceived in sin, and born in iniquity, with no rights, no name, and no people." We should be glad, if we had space, to follow by quoting the subsequent remarks of this very able brief, since they illustrate true eloquence,-the lightning of passion playing along the links of thought. But we must content ourselves with the icecold law, from which no friction will excite sparks. The common law must govern us, except where it is modified by statutory enactment. Accepting, as we do, the description of the status of bastards at common law furnished us by appellee's counsel, it may be noted that the basis of the rule was the discouragement of immorality in the promiscuous intercourse of the sexes, not sanctioned by the public contract of marriage. The effect of the law on the millions who were governed began, after the lapse of many centuries, to dawn on the minds of the select few who governed them. These few, at occasional intervals between the numerous avocations of the multitudinous pleasures offered by wealth, began to observe that bastardy continued to prevail; that illegitimacy of birth, notwithstanding the thunders of the law from parliament house, the right reverend clergy, and the wigs and gowns of the courts, continued to be, as it always had been before, a "condition, and not a theory." Bastards still dot

while the particular kingdom was in no worse situation in this shocking regard than the other kingdoms, empires, and suzerainties of earth, still it was in no better, to say the least of it. It was seen to prevail still. So, the premises being well considered for 700 years or so, it finally dawned on the benevolent minds of a few of "my lords and gentlemen," who we must assume were not at all interested personally in the question, that the unoffending, unconsulted, and innocent offspring of unhallowed natural appetite ought to have some sort of consideration. Thereupon a law was enacted magnanimously recognizing that bastards were in its eye, as in fact, the children of their own mothers. The slow process of evolution has, up to the date of this opinion, on the doctrine of gradual deviation from the original type, developed section 1549 of the Code. This section, on the point now being considered, has these words: "Illegitimates shall inherit from their mother, and from her other children and from her kindred according to the statutes of descent and distribution; and the children of illegitimates and their descendants shall inherit from the brothers and sisters of their father and mother, whether legitimate or illegitimate, and from their grandparents. But the children of illegitimates shall not inherit from any ancestor or collateral kindred if there be legitimate heirs of such ancestors or collateral kindred, in the same degree, to whom the estate would otherwise descend." This statute gives bastards something in the neighborhood of half a showing. The common law and the statute law being as stated, it is necessary to show both on the subject of the rights of kindred to sue for damages for the willful or negligent killing of one of their blood, premising the observation that there is nothing whatever in the statute of descent and distribution making any right of action inheritable either by legitimates or illegitimates.

By the wisdom of the common law, so prcfound as to be quite undiscernible, if a man was hurt by the negligence of another he might sue for damages, but if he was killed by the negligence neither his heirs nor his executor or administrator could sue at all; thus making it much cheaper to kill him than to hurt him. This was the law for twelve or thirteen hundred years or such a matter of time, when there was a certain sportive variation of type shown by Lord Campbell's act of 1846, which gave the right to the personal representatives. This variation has, fortunately, been persistent. It has evolved a new type, and has developed it into so improved a condition as that, in our own state, we find in Acts 1898, p. 82, a provision that "a sister or brother" may sue for the death of a sister or brother. It will be seen that the Code in the chapter on descent and distribution

makes an innovation on the common law in favor of illegitimates in regard to inheritance, but nowhere in that chapter makes rights in action for torts transmissible by descent, and at common law they were not so transmissible. Lord Campbell's act, the progenitor of the act of 1898, and this act, give the right to sue to certain survivors, and these acts are also an innovation on the common law, which gave no such right, and neither act deals with inheritance nor makes any mention of illegitimates. Now, it has been uniformly held under Lord Campbell's act, and on acts similar to ours, that the courts will not extend by construction so as to encourage immorality, and that when legislative acts enabling survivors to sue use the word "kin" they mean legitimate kin, and when they say "father" or "mother," "children," or "brother" or "sister" they mean only legitimate father or mother, children, brothers, or sisters. Black, Law & Prac. Acc. Cas. § 109, and note 31; Tiff. Death Wrongf. Act, § 85, note 15. Where a statute gave the right to a "parent," it is held that even the mother cannot recover for the death of her own illegitimate child, as Mr. Tiffany says; and he refers to Harkins v. Railroad Co., 15 Phila. 286, and he says that the rule is the same under the Missouri statute, giving the right to sue for the death of a "minor unmarried child," whether natural born or adopted; and he cites Marshall v. Railroad Co. (C. C.) 46 Fed. 269. He also cites Dickinson v. Railway Co., 2 Hurl. & C. 735, and two other cases not accessible to us; and he refers also to Good v. Towns, 56 Vt. 410, which holds that, under a statute giving action for death from liquor illegally sold, an illegitimate child cannot recover for the mother's death. We have verified all the cases he cites except the two not accessible, and they fully sustain the text. See, also, Gibson v. Railway Co., 15 Am. & Eng. R. Cas. (O. S.) 507. The only case to be found contra is Muhl's Adm'r v. Railroad Co., 10 Ohio St. 276, and there it was the administrator who sued, as he might by the statute; and the court said, en passant, under a statute using the words "nearest of kin," that the nearness or remoteness of kin, where the mother was concerned, did not depend "upon the circumstances of his [the child's] being born within or without lawful wedlock." The court seems to assume this as being a matter without question, does not cite or discuss an authority, and, manifestly, had not examined into the question. It is certain that, in all those states applying strict construction to statutes innovating on the common law, it is uniformly held that illegitimates are never considered as being included unless they are expressly included, and that statutes giving persons remedies which they did not have at common law cannot be helped by reference to statutes of descent so as to take in the kin of bastards. Now,

it is well known that no state has gone further than our own in this line of strict construction of enactments changing the common law so as to intend nothing not expressly mentioned changing that law. This rule runs through all our decisions, of which we refer to Edwards v. Gaulding, 38 Miss. 118, and Porter's Heirs v. Porter, 7 How. 111, 112, as directly pertaining to the subject in hand. We feel compelled, much against our inclination, to declare, as the existing law of the land, that plaintiff below could not sue. Reversed and remanded.

1. Where those having a contract for the erection of a building, not being able to complete the same, for want of funds, contracted with creditors that certain persons should take charge of the work, provide the necessary labor and material, and complete the building,-pro rata advances to be made by the creditors,such agreement did not create a partnership.

Sec

2. Rev. St. U. S. § 3737, declares that no contract with the United States shall be transferred, by the party to whom such contract is given, to any other party, and that such transfer shall cause the annulment of the contract so far as the United States is concerned. tion 3477 declares the formalities to be observed on the transfer of any claim against the United States. Held, that where contractors for a government building were unable to complete the work, and an agreement was made between them and their creditors whereby the creditors were to provide the funds necessary for completion, and moneys received from the government were to be distributed among the creditors, and one of the creditors thereafter, on completion of the work, obtaining all the money due under the contract, applied it to its debt, and was subsequently garnished in a suit against the other creditors, the United States not being interested, sections 3737 and 3477 had no application to the determination of the parties' rights.

3. Under Code 1892, § 2143, which declares that if a garnishee, before or after the entry of judgment against him, shall show that another person claims title to or an interest in the debt, the court shall suspend further proceedings, and summon such person and protect his interests, an indebtedness due defendant and another may be garnished.

4. Where those having a contract for the construction of a building, being unable to carry on the work, contracted with their creditors that the creditors should supply funds for its completion, and the amount due under the contract was thereafter obtained by a creditor bank, which applied the entire sum to its debt, and the bank was garnished in an action by a third party against the other creditors, if one of the parties to the agreement was not made a party to the garnishment he might be interpleaded, since Code, § 752, allows as many verdicts and judgments, joint, separate, and cross, as may be necessary to effect justice in the garnishment.

Appeal from circuit court, Lauderdale county; G. B. Huddleston, Judge.

Action by Fewell & Son against the American Surety Company and others (the Citizens' Savings Bank of Meridian and an

other, garnishees). From a judgment in favor of the garnishees, plaintiffs appeal. Reversed.

Fewell & Son, pro se. Alexander & Alexander, for appellees.

BRAME, Special Judge. In 1896 Stowell & Co. entered into a contract with the United States to erect a public building at Meridian, Miss. They gave bond conditioned for the performance of the contract, with the American Surety Company as surety. Said contractors being largely in debt, and not being able to complete the building, on June 30, 1897, entered into a written agreement with certain of their creditors looking to the carrying out of the contract for the benefit of the latter. The parties signing this agreement, besides the contractors, were the American Terra-Cotta & Ceramic Company, E. R. Brainard, Michael D. Flavin, and the Allen Cornice Works, creditors and subcontractors. The Citizens' Savings Bank of Meridian, another creditor, signed also, and so did the American Surety Company. This agreement recited the attitude and relation of the parties, and the inability of the contractors to proceed further; and it was stipulated therein that Street and Herzog, styled a committee, should take charge of the work, provide the necessary labor and material, and complete the building. It was further agreed that Stowell & Co. were from that time to have only a nominal connection with the contract, but that, if necessary, they were to sign all vouchers required by the government, and that the committee (Street and Herzog) should receive all moneys on such vouchers, and, after defraying expenses, distribute the same pro rata among the above-named creditors of Stowell & Co. The agreement also provided for pro rata advances to be made by these creditors in order to complete the work. Pursuant to the agreement, the committee completed the building, and it was accepted by the government, and a voucher for $10,000 was issued therefor, and the money was collected thereon. In some way, not clearly explained in the record, appellees the said Citizens' Savings Bank and George M. Hodges came into possession of this money; and, with full notice of the rights of all concerned, the said garnishees appropriated the money or applied it to the indebtedness of the bank, in violation of the rights of the other creditors under said agreement. In December, 1898, Fewell & Son, creditors of said other parties, sued out an attachment for $1,000 against them, and, as we understand, against the American Surety Company. At the same time a garnishment was issued against Hodges, the Citizens' Savings Bank, and others. The record is not explicit as to who the several defendants were, or who was garnished; by agreement of counsel, the original proceedings being omitted, and the case being

brought to this court on an issue made as to two of the garnishees. Plaintiffs in attachment having obtained judgment against the defendants, and the garnishees, Hodges and the Citizens' Savings Bank, having filed separate answers denying indebtedness to the defendants, the plaintiffs traversed these answers, setting out in a brief way the above facts as to the collection and conversion of the money, and averring that each of the garnishees was indebted to defendants. The garnishees demurred to the traverses, and moved to strike the same from the files, on various grounds assigned, the substance of which was that the assignment of the government contract was void, that the indebtedness was not such as could be reached by garnishment, and that the traverse was vague and insufficient. This was in July, 1899. The record does not show any disposition of the demurrers or the motions to strike out at that time. Thereupon the plaintiffs presented an amended traverse, averring at length and with more particularity the facts above stated as to the government contract, the agreement of June 30, 1897, the completion of the building, and the collection and conversion of the money by the garnishees, Hodges and the Citizens' Savings Bank. The record does not distinctly show the date of presenting this amended traverse, or that it was filed. But the garnishees demurred to it, and moved to strike out the same on the grounds substantially as above stated; and an additional ground of the motion was that the amended traverse was filed without leave of court. At the January term, 1900, the record shows that the motion to strike out the original traverses and the demurrers thereto came on to be heard, and were sustained, and that thereupon the motion of plaintiffs to file their amended traverse was overruled on the ground that the same presented no sufficient response to the answers of the garnishees. Plaintiffs excepted to the action of the court, and declined to plead further, and thereupon judgment final was rendered in favor of the garnishees, from which plaintiffs appealed.

The United States is not interested in this litigation. The contract was fully executed as far as the government was concerned. The building was completed and paid for, and this controversy is alone between the parties hereto, as to the disposition of the money received for its erection. Therefore sections 3737, 3477, Rev. St. U. S., relating to assignments of contracts made with the government, have no application. The primary purpose of these statutes is to protect the government, and they cannot be relied upon for protection by parties situated as the appellees are. Goodman v. Niblack, 102 U. S. 556, 26 L. Ed. 229; Bailey v. U. S., 109 U. S. 432, 3 Sup. Ct. 272, 27 L. Ed. 988; Hobbs v. McLean, 117 U. S. 567, 6 Sup. Ct. 870, 29 L. Ed. 940; Trust Co. v. Shepherd, 127 U. S. 494, 8 Sup. Ct. 1250, 32 L. Ed. 163;

York v. Conde, 147 N. Y. 486, 42 N. E. 193, indirectly approved in Conde v. York, 168 U. S. 642, 18 Sup. Ct. 234, 42 L. Ed. 611. In Howe v. Jolly, 68 Miss. 323, 8 South. 513, it was held that the act of 1886, declaring that there shall be no property in intoxicating liquors kept for sale in violation of law, does not apply as between partners in such business, so as to permit one partner to convert to his own use liquors unlawfully kept, without liability to his co-partner. See, also, Gilliam v. Brown, 43 Miss. 641. The principle is applicable here. The decision in Surety Co. v. U. S., 76 Miss. 289, 24 South. 388, where the transfer or assignment involved here was held void, is distinguishable. In that case the government, for the use of another party, was suing on the bond of the surety company to enforce compliance with the contract. Being a party to the suit brought to enforce the contract, it was in a position to successfully urge the invalidity of the assignment under the federal statutes.

The solution of the question whether the indebtedness alleged to be due by the garnishees to the defendant is subject to garnishment has given us considerable difficulty. The garnishee Hodges was not a party to the agreement of June 30, 1897, under which Street & Herzog, styled a committee, were to carry out the contract with the government, complete the building, collect the money, and pay it over to the Citizens' Savings Bank and other creditors of Stowell & Co.; and hence it cannot be claimed that he was a partner of the defendants or of any of the parties. If the said agreement of June 30th, and what was done under it, constituted a partnership, then it is plain that the garnishment cannot be maintained, certainly as to the bank, for it was a party to that agreement. It is well settled that garnishment, being a legal proceeding, and not adapted to the investigation of accounts, cannot be maintained against a partnership for a debt due by one or more partners. Williams v. Gage, 49 Miss. 777. But we do not regard this arrangement of the several creditors of Stowell & Co. as a partnership, at least as between the parties. It was but a single venture,-an agreement made by creditors with a view to collecting their debts. It is true that trustees were selected, and expenses were to be incurred, and the money collected and disbursed; but it cannot be supposed that the parties, represented as they were by counsel, in making this agreement, ever contemplated forming a partnership. As between the parties in a joint venture, the usual test of a partnership is the intent of the persons to form one. If the parties do not intend to become partners, ordinarily they cannot be considered as such. 17 Am. & Eng. Enc. Law (1st Ed.) p. 833, and authorities cited. No rights of creditors or third persons are involved here. We regard this, as the parties themselves did, a mere venture of the creditors of a common debtor, having in view the

carrying out of a contract and the collection of their debts. No partnership was contemplated, and none was created. The parties were mere joint creditors. The contract with the government had been executed, the work had been done, and the money paid over. The defendants severally and the Citizens' Savings Bank were entitled to their respective shares of the same, and, under the facts set up in the amended traverse, we think an action could have been maintained by either of the parties for the recovery of the amount due, as for money had and received, or in assumpsit. This being true, garnishment is maintainable if a joint debt (that is, an indebtedness due to the defendant and another or others) can be subjected by that process. On this question the authorities are very much divided. We have carefully examined all those cited, and some others developed by our own research. In 14 Am. & Eng. Enc. Law (New Ed.) p. 798, the authorities are grouped, and the conclusion of the text is that such a debt is not garnishable. But a careful reading of the decisions, especially in view of the liberal provisions of our statutes, convinces us that the true rule is announced in 8 Am. & Eng. Enc. Law (1st Ed.) p. 1169, where it is said that a joint debt may be garnished. The authorities in support of the proposition are collected in the opinion of the court in the case of Moore v. Gilmore, 16 Wash. 123, 47 Pac. 239, 58 Am. St. Rep. 20, and we approve that decision. See, also, Fogleman v. Shively, 4 Ind. App. 197, 30 N. E. 909, 51 Am. St. Rep. 213; Drake, Attachm. § 572; and Piper v. Hanley, 48 Vt. 479. A number of the decisions cited in the new edition of the Encyclopædia of Law as being in opposition to the right to garnish a joint debt were made in partnership cases, and hence they are not applicable; it being, we believe, universally conceded that garnishment will not lie in such cases unless specially authorized by statute. In the case of Kennedy v. McLellan, 76 Mich. 598, 43 N. W. 641, relied upon by appellees, it was held that a judgment in a garnishment proceeding, brought to subject the interest of one of two joint payees in a life insurance policy, was invalid; and the case is cited, with others, as holding that a joint debt may not be garnished. But the opinion of the court in that case was rested solely upon the fact that the other payee had not been brought in under an act of 1885 authorizing the interpleader of any third person having a claim to the property or debt, or a "part thereof." We think, if the other payee had been made a party to the garnishment, the judgment would have been upheld. Therefore the case is, as we view it, an authority in support of the proposition that a joint judgment may be garnished where there is an interpleader statute such as we have. Section 2143 of our Code of 1892 provides that where the garnishee, before or after final judgment against him, shall show that another person claims title to or "an interest in the debt" or prop