Opinion of the Court.

reëxamined, or the matter in controversy again drawn into question, unless in an appellate forum. Wright v. Washington, 5 Grattan, 645; West v. Carter, 129 Illinois, 249; S. C. 25 Ill. App. 245; Giddens v. Lea, 3 Humph. 133; Clay v. Fry, 3 Bibb, 248; Jeune v. Osgood, 57 Illinois, 340; Le Guen v. Gouverneur, 1 Johns. Cas. 436, 492; Hempstead v. Watkins, 6 Arkansas, 317; Hendrickson v. Hinckley, 17 How. 443; Arrington v. Washington, 14 Arkansas, 218; Bank of the United States v. Beverly, 1 How. 134; Cromwell v. County of Sac, 94 U. S. 351; Gelston v. Hoyt, 3 Wheat. 246; Hopkins v. Lea, 6 Wheat. 109; Campbell v. Goodall, 8 Ill. App. 266; Bennitt v. Wilmington Star Mining Co., 119 Illinois, 9.

III. Rice not being a party to the judgment against Foote, and the judgment at the time of its rendition not affecting any of his rights, he is not a party in interest and should not be permitted to file his cross-bill to set aside the judgment. Stone v. Towne, 91 U. S. 341; Carter v. West, 129 Illinois, 249.

IV. The transactions between Hooker & Co. and Foote were not prohibited by the Illinois statutes. Jackson v. Foote, 11 Bissell, 223.

Mr. Lewis H. Bisbee for appellee. Mr. Robert H. Kern and Mr. Frank F. Reed were with him on the brief.

MR. JUSTICE HARLAN, after stating the case, delivered the opinion of the court.

Does the bank's judgment against Foote preclude inquiry, in this suit, between the respective assignees of Foote and of Hooker & Co., as to whether the original claim of that firm against Foote, and Foote's transfer of the Couch notes to it with guaranty of payment, were void under the laws of Illinois?

The statute of Illinois referred to being the part of the Criminal Code of that State, relating to "Gambling and Gambling Contracts" - provides:

SEC. 130. "Whoever contracts to have or give to himself or another the option to sell or buy, at a future time, any grain or other commodity, stock of any railroad or other company,

Opinion of the Court.

or gold, or forestalls the market by spreading false rumors to influence the price of commodities therein, or corners the market, or attempts so to do, in relation to any of such commodities, shall be fined not less than $10 nor more than $1000, or confined in the county jail not exceeding one year, or both; and all contracts made in violation of this section shall be considered gambling contracts, and shall be void."

SEC. 131. "All promises, notes, bills, bonds, covenants, contracts, agreements, judgments, mortgages or other securities or conveyances made, given, granted, drawn or entered into, or executed by any person whatsoever, where the whole or any part of the consideration thereof, shall be for any money, property or other valuable thing, won by any or bet upon any contingent event whatever, or for the reimbursing or paying any money or property knowingly lent or advanced at the time and place of such

so gaming or betting,

chance,

.

wager

or unknown or

bet, to any person or persons

shall be void and of no effect."

SEC. 135. "All judgments, mortgages, assurances, bonds, notes, bills, specialties, promises, covenants, agreements and other acts, deeds, securities or conveyances, given, granted, drawn or executed, contrary to the provisions of this act, may be set aside and vacated by any court of equity, upon bill filed for that purpose, by the person so granting, giving, entering into or executing the same, or by his executors or administrators, or by any creditor, heir, devisee, purchaser or other person interested therein; or if a judgment, the same may be set aside on motion of any person aforesaid, on due notice thereof given."

SEC. 136. "No assignment of any bill, note, bond, covenant, agreement, judgment, mortgage or other security or conveyance as aforesaid, shall, in any manner, affect the defence of the person giving, granting, drawing, entering into or executing the same, or the remedies of any person interested therein." Rev. Stats. Illinois, 1874, pp. 372, 373, c. 38.

The appellant invokes the general rule that a judgment is final and conclusive, in any subsequent suit, between the same parties or their privies, as to all matters actually determined,

Opinion of the Court.

or which were necessarily involved, in the first suit; also, the rule, recognized in the courts of the United States, that equity will not, at the instance of one against whom a judgment at law has been rendered, restrain the operation or effect of that judgment, unless there be equitable circumstances justifying its interference, or unless such person was prevented by fraud or accident, unmixed with fault or negligence upon his part, from making full defence at law.

The courts of Illinois have not regarded these rules as strictly applicable in cases under the law relating to gaming and gambling contracts. In Mallett v. Butcher, 41 Illinois, 382, 385, the Supreme Court of that State, construing the statute in question, held that all contracts having their origin in gaming were void, not voidable only, and that it was entirely immaterial when or how the fact was disclosed to the court; consequently, a suit in equity would lie to set aside a judgment at law on a note given for money lost in gaming with cards, where the obligor failed to make defence. The same question arose in West v. Carter, 129 Illinois, 249, 254, which was also a suit in equity to set aside a judgment—obtained without a real defence being made upon a contract void under the gaming statute. It was there contended that sections 131 and 135 of the statute had no application to judgments except those rendered by confession; in other words, that those sections, in their application to judgments, affected only such as resulted from the voluntary act of the defendant. But the court refused to so restrict the operation of section 131. The judgments, promises and instruments therein specified being void and of no effect, "it is not," said the court, "in the power of the party to whom made, granted, given or executed, or in whose interest they are drawn or entered into, to give the contract validity. Nor can the court, at the instance of such party, any more than it could by the confession or consent of the defendant, vitalize the contract, and by its judgment defeat the effectiveness of the proceeding in equity authorized by the 135th section of the statute to set aside the void contract.

. The rule in equity, that courts of chancery will not take jurisdiction when there is an adequate defence or remedy

Opinion of the Court.

at law, must yield to the requirements of this statute, that relief may be granted in a court of equity to vacate and set aside judgments and contracts obtained in violation of this provision."

These cases, in effect, decide that the judgments which the statute permits to be vacated, upon bill in equity or motion, embrace those on confession, as well as those rendered upon default, or without a direct issue, fully and fairly tried, between proper parties. It is consistent with those cases to hold — as upon any sound interpretation of the statute, and in obedience to the principles of equity obtaining in the courts of the United States, we must hold that Foote's liability upon his guaranty of the Couch notes was, as between the bank and him, fixed by the judgment upon the direct issue in the suit at law, as to such liability, and which judgment has not been modified or reversed. Neither he nor Rice, claiming under an assignment executed after that judgment, could have it annulled by decree in a court of the United States, except upon some ground recognized in the courts of the United States as sufficient for the interference of equity.

Still, it is clear that the result for which the appellant contends does not follow. The two Couch notes were held by the bank only as collateral security for its claim against Hooker & Co. According to some adjudged cases, if the point had been made in the suit at law, the judgment against Foote would have been restricted to the real amount of the bank's claim. It is an undisputed fact that the amount due from Hooker & Co. to the bank, at the date of its judgment against Foote, April 17, 1882, computing the interest at ten per cent per annum, was less than one-half of the sum for which it took judgment. The excess over the amount really due from Hooker & Co., did not, in any view, equitably belong to the bank; but, as between it and Pearce, to the latter. Its interest in Foote's guaranty was measured by the amount of the indebtedness of Hooker & Co. to it at the date of the judgment against Foote. If the bank had collected the entire amount of that judgment from Foote, it would have been bound to account to the assignee of Hooker & Co. for the bal

Opinion of the Court.

ance remaining after its demand against that firm was satisfied; and this for the reason that it could not be deemed a bona fide holder for value except to the extent of its demand against Hooker & Co. Story on Prom. Notes, § 195; Mayo v. Moore, 28 Illinois, 428; Williams v. Smith, 2 Hill, 301; Stoddard v. Kimball, 6 Cush. 469; Chicopee Bank v. Chapin, 8 Met. (Mass.) 40; Farwell v. Importers' and Traders' Bank, 90 N. Y. 483, 488; Allaire v. Hartshorne, 21 N. J. Law, (1 Zabr.) 665; Maitland v. Citizens' Nat. Bk. of Baltimore, 40 Maryland, 540, 570; Union Nat. Bank v. Roberts, 45 Wisconsin, 373, 379; Tarbell v. Sturtevant, 26 Vermont, 513, 517; Valette v. Mason, 1 Indiana, 89; First Nat. Bk. of Dubuque v. Werst, 52 Iowa, 684, 685; Citizens' Bank v. Payne, 18 La. Ann. 222. All the bank can equitably claim in this suit is the amount due it from Hooker & Co., which was admitted and found to have been only $8459 at the date of the decree in this case. And its substantial rights were not disturbed by the decree under review; for its judgment against Foote, which was only collateral security for that claim, was not set aside, but the payment of the above amount made a condition precedent to its surrender of the Couch notes, and the assignment of that judgment. Neither the bank nor Rice complains of the decree in that form.

So, that the real question before us is as to the respective claims of the assignee of Hooker & Co. and the assignee of Foote to the possession of the Couch notes, and to the right of the appellant to enforce the judgment against Foote after the amount due the bank is paid. In determining these matters, must we assume, as between those assignees-neither having taken any greater rights than their assignors had that the transfer of the Couch notes to Hooker & Co. by Foote, and the latter's guaranty of those notes, were valid contracts under the above statutes of Illinois? Did the judgment of the bank establish the validity of those contracts as between Foote and Hooker & Co.? These questions must receive a negative answer. Hooker & Co. were not parties to the action at law, and there was no issue in it between them and Foote. Within the law of estoppel, there was no privity be