dissenting: One question is decided in the opinion of the majority of the Court:
(1) That a regular judgment rendered upon notes, valid on their face, may be set aside when there is no surprise or excusable neglect, upon a finding by the judge that the notes were executed to cover a liability growing out of a contract for “futures.”
*387I do not think tbe proposition is sound.
(1) Tbe material parts of tbe statute in regard to contracts for “futures” (Greg. Suppl., 1689) are that sucb contracts “shall be utterly null and void”; tbat “no action shall be maintained in any court to enforce any sucb contract,” “nor shall tbe courts of this State have any jurisdiction to entertain any suit or action brought upon a judgment based upon any such contract.”
It therefore appears tbat tbe prohibition on tbe courts is tbat they shall not entertain an action “to enforce any sucb contract,” or one “brought upon a judgment based upon any sucb contract,” and tbe subject-matter of tbe present appeal, tbe correctness of an order refusing to set aside a judgment, does not fall within either class.
Tbe distinction between actions instituted to enforce a liability growing out of a contract for “futures” and where tbe question arises otherwise is recognized in' Overman v. Lanier, 157 N. C., 548, in which the distributees attacked a payment made by tbe administrator upon tbe ground tbat tbe liability arose in a contract for futures, and tbe Court said of this contention: “We cannot agree with tbe defendants tbat because in their answer in this proceeding they alleged tbat these were gambling debts, this cast tbe burden of proof upon tbe plaintiff under Revisal, 1691. Tbat provision applies where a party sues upon tbe contract and the debtor denies it and sets up tbe defense. But here tbe defendants are alleging tbat tbe payment by tbe plaintiff of bis intestate’s notes, valid on tboir face, is invalid because tbe contract was founded upon illegal consideration, and tbe burden was upon them to prove it.”
This case is also important in tbat it determines tbat tbe plea tbat a liability, which a plaintiff is seeking to enforce, upon a contract for “futures,” is a defense and must be set up in tbe answer, and if a defense which must be pleaded, tbe defendant is now precluded by tbe judgment from relying on it. Caudle v. Morris, 160 N. C., 173. “A judgment will not be opened or vacated because founded on an illegal or fraudulent consideration, if tbe party knew of this objection and might have set it up in defense to tbe action.” 23 Cyc., 928.
In Best v. Mortgage Co., 133 N. C., 20, this principle of tbe conclusiveness of tbe judgment as to all matters of defense was applied to tbe plea of usury, which is condemned by statute.
When this action was commenced tbe court bad complete jurisdiction, as tbe defendant bad been served and tbe cause of action was upon notes valid on their face and for a-n amount within tbe jurisdiction of tbe court. Tbe defendant failed to answer and set up bis defense and judgment was rendered against him.
This judgment is an adjudication tbat tbe notes were valid, and it shuts off all inquiry as to tbe consideration of tbe notes unless it is set *388aside for irregularity or excusable neglect. If not, wbat becomes of tbe well established doctrine that when tbe cause of action is tbe same, a judgment concludes not only as to those matters litigated, but also as to those which might have been litigated? Coltrane v. Laughlin, 157 N. C., 287; Pinnell v. Burroughs, 168 N. C., 318, and cases cited.
The language in the last case may well be applied to the defendant in this action: “The party is estopped for the reason, in part, that he has been delinquent, as he had his day in court and a fair opportunity to assert his right, which he deliberately failed to do, and" he will not after-wards be heard to call the matter in question, for the law does not permit the same question to he again litigated under such circumstances. If it did, there never would be an end to controversy.”
I do not think we can consider the finding of the judge in the absence of excusable neglect, as that inquiry is merged in the judgment.
In Mottu v. Davis, 151 N. C., 237, a recovery was permitted upon a judgment obtained in Virginia, which was assailed upon the ground that it was rendered upon a contract for “futures” and under the statute as it is today.
BkowN, J., concurs in this opinion.