
    Succession of McNeil.
    A judgment ibnof conclusive against persons, neither parties, nor privies to it.
    Sec. 7 of the stat. of Mississippi of 21 February, 1840, prohibiting any bank in that State from transferring “ by endorsement or otherwise; any note, bill receivable, or other evidence of debt,” cannot he considered as prohibiting a bank from collecting its dues, by accepting payment of a note due to it, after maturity, li-om- a third person, nor ds depriving the latter of tile right to be refunded the amount out of tlie succession of the maker.
    Appeal from the Court of Probates of Madison, PPoltines, J.
    
      Amonett, for the appellant. Snyder and Shannon, contri.
    
   The judgment of the court was pronounced by

Ling, J.

This is a- controversy between two parties, each of whom claims to be entitled to the pro rata dividend, declared, on a tableau of distribution of the succession of Alexander McNeil, deceased, to be applicable to a note' of which the deceased was the maker. It appears from the evidence that McNeil was the maker of a note for $16,216 66, secured by mortgage, which was endorsed by O. B. Cóbb, and discounted by the Commercial and Railroad Bank of Vicksburg, for the use of the latter. Erwin, being a creditor of the bank, instituted’ a suit against it in a court of this State by attachment, in which he made Lowry, the curator of McNeil, a garnishee, and attached in-his hands tlie’debt, of which-the note in question is the evidence. A judgment was recovered in that action against both the bank-and the garnishee for §6,000, with interest.- The curator subsequently presented a tableau of distribution of the funds of McNeil's succession, on which he placed Erwin as a creditor, for the amount of the judgment. Cobb opposed this part of the tableau, alleging that he was the owner of tlie note in question. Mrs. Cobb, who is separated in property from her husband, subsequently intervened- in the proceeding, and claimed for herself thS fro raía dividend applicable to this note, averring that it belonged to her. The probate' judge sustained her claim, and decreed to her the distributive share of McNeil’s succession- applicable to the note. From that judgment Erwin has appealed.

The evidence establishes clearly that, after the maturity of the note, it was-taken up with funds of Mrs. Cobb's, and for her benefit, by the husband, who-acted as her agent in the transaction.- But Enoin contends that his attachment-was prior to the acquisition of the note by Mrs. Cobb, and that his-judgment obtained in that proceeding determined his right as a creditor to be placed on the-tableau, and to be paid the amount of his claim, in preference to the intorvenor.He also contehds that, a statute of Mississippi forbids the banks of that State from-assigning their evidences of debt; that the intervenor acquired the note in contravention of'this prohibitive law'; and that her title to it is consequently void.Mrs. Cobb was not a party to the suit of Erwin against the bank, and the judgment which he obtained in that proceeding had not, as to her, the force of- the thing adjudged'. Although that judgment stood unréversed at the date of the trial below, it had not the effect of concluding her from contesting Erwin’s claims, nor from showing her ownership of tlie note,-and claiming the dividend ot McNeil's succession applicable'to it.

It has been suggested that, on an appeal to tlie Supreme Court, the judgment obtained by Erwiri was reversed, in consequence’of irregularities and defects in the proceedings. The cause had not been finally determined on the’ appeal, when the judgment in the present controversy was rendered ; and the decree of the Supreme Court is not in evidence before us,- but is reported in the 12th vol-. of-Robinson’s Reports, p. 227. Erwin consequently acquired no rights under his attachment. His claim rests upon a judgment which has been reversed, and it is difficult to perceive with’what object he prosecutes this appeal; for, although we are compelled, in the present state of the record, to reverse the judgment of the inferior court, it must be merely for the purpose of remanding' the cause to receive in evidence the decree of the Supreme Court, in the case of Erwin v. The Commercial and Railroad Bank of Vicksburg, which will destroy the foundation on which his claim against McNeil's succession is based.

An isolated section of the statute of Mississippi of 1840 is in evidence, which prohibits the banks of that State from transferring their notes, bill’s receivable, or other evidences of debt, by endorsement or otherwise. There is nothing, however, in the law before us, which forbids those institutions from collecting their dues; and a: prohibition so unreasonable is ñot to be presumed. In the present instance, the bank surrendered the note to one of the parties to it, who" paid its amount in full. As between the bank and that party, we presume that tlie transaction is valid and sanctioned by tho laws of Mississippi. The funds, however, used in making the payment, belonged to ¡1 third person, and to that person the benefit of the payment must result.

For the reasons assigned the judgment of the Probate Court is reversed, and the cause remanded for the purpose of enabling the opponent, Cobb, to offer in evidence the decree of the Supreme Court, in the case of James Erwin v. The Commercial and Railroad Bank of Vicksburg; the appellee paying the costs of this appeal.  