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ished, etc., imply an executed instrument, or at least one which on its face purports to be executed by somebody. They would not include false or bogus bonds, which bear no signature whatever. United States v. Williams (U. S.) 14 Fed. 550, 552. A bond issued by a mining company and resembling a United States bond, but not purporting to be executed by any party whatever, is not an obligation or other security, within the meaning of the statute. United States v. Sprague (U. S.) 48 Fed. 828, 830.

Contract.

The term "obligation," as used in Pub. St. c. 60, par. 71, allowing a counterclaim in an action arising on obligation, means contract, and comprehends all causes of action arising ex contractu, as distinguished from causes of action arising ex delicto. Morrison v. Lovejoy, 6 Minn. 319, 353 (Gil. 224, 236).

The word "obligation," in a strict, technical sense, means properly a bond. 2 Bl. Comm. 340. But, as used in Comp. St. p. 541, § 71, providing that a counterclaim "must be one arising out of the following causes of action: (2) In an action arising on obligation, any other cause of action arising also on obligation, and existing at the commencement of the suit"-was intended to receive a more liberal construction, and to apply to all matters arising ex contractu. Folsom v. Carli, 6 Minn. 420, 426 (Gil. 284, 289), 80 Am. Dec. 456.

A partnership indebtedness is an "obligation," within Code Civ. Proc. § 235, providing that, when a judgment is recovered against one or more of several persons jointly indebted upon an obligation by proceedings as provided in this act, those who are not originally served may be summoned to show cause why they should not be bound by the judgment as if originally served. It does not contemplate merely an indebtedness arising upon and evidenced by an agreement in writing. "Obligation" is a generic word, and when used in its broadest sense includes all kinds of contracts by which a person may become bound, and should be so construed unless, from the connection in which it is used, it is to be gathered that the Legislature intended to give it more limited significance. Sawyer v. Armstrong, 47 Pac. 391, 392, 23 Colo. 287.

The word "obligation," in its origin, imports compulsion, the tying or binding of one against or irrespective of his consent. But consent is of the essence of a contract. The presence of compulsion on either side is fatal to its existence. The contract, therefore, or act of contracting, does not create an obligation, and does not of itself put any force upon the contracting party, since by the very nature of the transaction he volun

tarily undertakes to do the thing promised. The obligation-that which, by a force stron ger than his dissenting inclination or his repelling interest, constrains his will or ties him to the performance of his promise, whether he continue willing or not, and but for which he would, in any instance, refuse such performance-is the creature exclusively of law. The contract is the occasion, but it is not the efficient cause, of obligation. It is manifestly the legal obligation of contracts which such legislation is forbidden by the Constitution to impair. Wood v. Wood (S. C.) 14 Rich. Law, 148, 154, 156.

Debt or liability.

The term "obligation," as used in an attachment affidavit, alleging that defendant fraudulently contracted the debt or incurred the obligation, was synonymous with the term "debt," the obligation and the debt meaning necessarily the same thing; and

therefore the affidavit was not rendered void for uncertainty by reason of the use of the disjunctive conjunction "or" between the allegation that the debt was fraudulently contracted and the allegation that the obligation was fraudulently incurred. Emerson v. Detroit Steel & Spring Co., 58 N. W. 659, 660, 100 Mich. 127.

Gen. St. 1889, par. 1268, providing that any two or more railroad companies are authorized to consolidate and form one company, subject to all the "obligations and liabilities to the state" which belong to or rest upon either of the companies making such clude all claims, debts, or other pecuniary consolidation, should be construed to inIf obligations to the state only were intenddemands of each of the original companies. ed, it would not have been necessary to have added the words "liabilities to the state,"

because "liability" is defined as the state of being liable, as the liability of an insurer, liability to the law, responsibility, accountableness, accountability, or bounden duty. "Obligation" is also defined as that which obligates or constrains; the binding power of a promise, or a contract; a bond with a condition annexed and a penalty for nonfulfillment. In a larger sense it is an acknowledgment of a duty to pay a certain sum or do a certain thing; responsibility; accountableness; bounden duty. To hold that obligations and liabilities are limited to the state only would be to say that the Legislature was guilty of a repetition of the same meaning in different words. On the other hand, if obligations and liabilities are both given their full force and effect, "obligations" may be construed as embracing all pecuniary duties in the way of being answerable for debts, demands, etc. "Liabilities" may mean burdens imposed by the Constitution and the statutes; that is, the responsibility or bounden duty to the state under

the Constitution and statutes. Berry v. Kan- | contract under seal. Rippon's Ex'rs v. sas City, Ft. S. & M. R. Co., 34 Pac. 805, 808, Townsend's Ex'rs (S. C.) 1 Bay, 445, 447. 52 Kan. 759, 39 Am. St. Rep. 371.

179,

"Obligation," as used in Code, subd. 4, permitting the arrest of a defendant for fraud in incurring the "obligation," as used in a general sense, includes all the cases beyond those embraced in the first clause, where the fraud was committed in contracting the debt for which the action is brought. The word is to be construed in this connection as equivalent to "legal liability" or "legal duty." Crandall v. Bryan (N. Y.) 15 How. Prac. 48, 53, 5 Abb. Prac. 162.

The reward authorized by Act March 19, 1899, to be paid to the person who shall be first in obtaining an artesian well in the county, offering the reward, and providing that, on the board of supervisors being satisfied with the requirements having been complied with, it shall draw a warrant on the treasurer, and that all expenses shall be chargeable to the county, etc., is an obligation within the meaning of Act Cong. July 30, 1886, c. 818 (24 Stat. 170), limiting the Indebtedness of any county to 4 per cent. of the value of the taxable property, and providing that all bonds or obligations in ex

cess of such amount shall be void. McRae v. Cochise County (Ariz.) 44 Pac. 299, 300, 33 L. R. A. 851, 56 Am. St. Rep. 579.

Deed or sealed instrument.

An obligation is defined to be "a deed in writing whereby one man doth bind himself to another to pay a sum of money or to do some other thing." Cover v. Stem, 10 Atl. 231, 232, 67 Md. 449, 1 Am. St. Rep. 406 (citing Shep. Touch.); Jeffery v. Underwood, 1 Ark. (1 Pike) 108, 112.

The word "obligation," in its most technical signification, imports ex vi termini a sealed instrument-that is, a bond; but in its more popular sense the term signifies an instrument or writing by which a contract is witnessed. In Comyn's Digest an obligation is defined to be a deed whereby a man binds himself under a penalty to do a thing. Hargroves v. Cooke, 15 Ga. 321, 330; Morrison v. Lovejoy, 6 Minn. 319, 353 (Gil. 224, 236).

It is said there are only three things essentially necessary to the making of a good "obligation," namely, writing on paper or parchment, sealing, and delivering; and it has been adjudged not to be necessary that the obligor should sign or subscribe his name, because the subscribing is no essential part of the deed, the sealing being sufficient. Jeffery v. Underwood, 1 Ark. (1 Pike) 108, 112 (citing Bac. Abr.).

Any memorandum in writing under seal, whereby a debt is acknowledged to be owing, will obligate the party to pay. Cover v. Stem, 10 Atl. 231, 232, 67 Md. 449, 1 Am. St. Rep. 406.

An engagement entered into by a bank under its corporate seal is properly termed an "obligation." Kemmerer v. Wilson, 31 Pa. (7 Casey) 110, 113.

Draft or note.

The term "obligation or written contract," in the provision of the statute declaring that an obligation or written contract of several persons shall be joint and several, unless otherwise expressed, held not to embrace or apply to promissory notes or bills of exchange. Gale v. Myers (Del.) 4 Houst. 546, 547.

A protested draft is not an obligation,

within the meaning of the provisions of Act Pa. April 16, 1850, declaring that the assignees of an insolvent bank shall receive in payment of debts due to said bank its own notes and obligations and the checks of its depositors at par. Basehore v. Rhodes, 85 Pa. 44, 46.

Duty of person occupying fiduciary relations.

The duty of an administratrix to account is an "obligation," within Code Civ. Proc. § 382, subd. 1, limiting actions on contract obligations or liabilities, express or implied, to six years after the cause of action accrued. In re Nicholls, 8 N. Y. Supp. 7, 8, 2 Con. Sur. 156.

Enforceable obligation.

"An obligation, whether arising from contract or by operation of law, is one binding upon the obligor and one that may be enforced by the obligee. It does not rest in the option of the actor to perform or to refrain from performing at his own will. It does not depend for its existence upon the happening of a future event or the event of any contingency. It is an executed, a completed thing, having an existence in the present, binding in the present upon the obligor, and capable of being enforced by the obligee." Keith v. Haggart, 33 N. W. 465, 468, 4 Dak. 438.

Evidence of debt.

As used in a will providing that if, at the distribution, there should be due to the estate from any of the legatees obligations of any kind or evidences of debt of any kind, then such obligations shall be deducted from such legatee's share before payment, the "Obligation" is a technical term, which term "obligation" meant to include notes and in its legal and proper meaning signifies a all instruments by which the maker thereof

binds himself to pay money, and as used States" nowhere appeared in the act, but the the second time it was intended to embrace all those things mentioned in the first clause, namely, obligations of any kind and evidences of debt of any kind. Hill v. Bloom, 7 Atl. 438, 440, 41 N. J. Eq. (14 Stew.) 276.

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The words "contract or obligation," as used in Act June, 1879, which provides that "the rate of interest upon the loan or forbearance of any money, goods, or things in action shall be $6 upon $100 for one year, and after that rate for a greater or less sum, or for a longer or shorter time; but nothing herein contained shall be so construed as to in any way affect any contract or obligation made before the passage of this act," would include a judgment, so that the interest on a judgment recovered before the passage of this act would not be reduced by the act. Prouty v. Lake Shore & M. S. Ry. Co. (N. Y.) 26 Hun, 546, 549. Contra, see O'Brien v. Young, 95 N. Y. 428, 435, 47 Am. Rep. 64.

Limitation on powers of corporation.

Laws 1883, c. 175, which provides that, where any other state shall impose any "obligation" on co-operative life insurance companies of New York doing business in such other states, "the like obligations are hereby imposed on similar corporations of such other state transacting business in this state," does not impose on a Massachusetts corporation doing business in New York the prohibition of St. Mass. 1885, c. 183, § 10, that no policy or certificate shall be issued on "the life of any person more than 60 years of age," since it is the obligations, and not the prohibitions, that are imposed on foreign companies by the retaliatory act of 1883. The provision of the statute referred to is evidently one to be strictly construed, and, when so construed, the term "obligation" will not be held to include a limitation upon the powers of the corporations referred to. Griesa v. Massachusetts Ben. Ass'n, 15 N. Y. Supp. 71, 74, 60 Hun, 581.

National currency.

Where 13 Stat. 218, § 13, provided that the words "obligation or other security of the United States," used in the act, should include national currency, but the phrase "obligation or other security of the United

word "obligation" appeared alone in another section of the act, the phrase "obligation or other security of the United States" should be construed to have referred to the words used therein separately, and not as a phrase; and hence the word "obligation," as used alone, included national currency. United States v. Rossvally (U. S.) 27 Fed. Cas. 901, 902.

Order for payment of money.

Orders on the federal treasury, payable on demand, for interest due on United States consols, are not "obligations of the United States," within the statutory provision exempting stocks, bonds, and other obligations of the United States from state and municipal taxation. Hibernia Savings & Loan Soc. v. San Francisco, 72 Pac. 920, 139 Cal, 205, 96 Am. St. Rep. 100.

Partnership indebtedness.

Code Civ. Proc. § 235, provides that, when a judgment is recovered against one or more of several persons jointly indebted upon an obligation by proceeding as provided in the act, those who were not originally served may be summoned to show cause why they should not be bound by the judgment as if originally served. Chapter 3, § 42, provides that, if plaintiff recover judgment, it may be enforced against all the defendants thus jointly liable as to their joint property, and as to the separate property of the defendants served. Held, that the word "obligation" in section 235 includes a partnership indebtedness. "This word," says the court, "when used in a statute as the name of a contract, is a generic word, including all kinds of contracts by which a person may become bound, and should be so construed, unless from the connection in which it is used it is to be gathered that the Legislature intended to give it a more limited signiflcation." Sawyer v. Armstrong, 23 Colo. 287, 290, 47 Pac. 391.

Recognizance.

A New Jersey statute of limitations provides that every action of debt or covenant, etc., upon any obligation for the payment of money only, shall be commenced within a certain time. Held, that the words "obligation for the payment of money" are used in the sense of "contracts," and do not include a recognizance, since a recognizance has more of the nature of a judgment than a contract. Elsasser v. Haines, 18 Atl. 1095, 1100, 52 N. J. Law (23 Vroom) 10.

Tort.

"Obligation," as used in legislative provisions relative to a legal duty or liability, means a duty or liability which may arise from an oral or written contract, or in some instances from tortious conduct which gives

another a right of action. Exchange Bank | OBLIGATION IN SOLIDO.
v. Ford, 3 Pac. 449, 451, 7 Colo. 314.
See "In Solido."

"Obligation," as used in Laws 1869, p. 2383, chartering a city, which provides that no action against the city on a contract, obligation, or liability, express or implied, shall be commenced, except within one year after the cause of action shall have accrued, only includes such claims, accounts, or demands as are required to be presented for audit, and does not include liabilities for tort. McGaffin v. City of Cohoes, 74 N. Y. 387, 388, 30 Am. Rep. 307.

The word "obligation," as used in Act Feb. 16, 1865, amending Code Civ. Proc. 191, and providing that an attachment may issue in a civil action for the recovery of money when defendant has "fraudulently or criminally contracted the debt or incurred the obligation for which the suit is about to be or has been brought," is equivalent to "liability" in cases in which the element of criminality is present, and therefore an attachment will lie to recover unliquidated damages for assault and battery; for that is a liability in the origin of which the element of criminality is present. Sturdevant v. Tuttle, 22 Ohio St. 111, 114.

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OBLIGATION OF CONTRACT.

See "Impairing Obligation of Contract." "The Institutes (liber 3, tit. 4, Cooper's translation) say: 'An obligation is the charge of the law by which we are necessarily bound to make some payment according to the law of the land.' Pothier, in his Treatise Concerning Obligations, in speaking of the obligation of contracts, calls it 'vinculum legis,' the chain of the law. Paley (page 56) says: "To be obliged is to be urged by violent motives, resulting from the command of another.' From these authorities, and many more might be cited, it may be fairly concluded that the obligation of the contract consists in the power and efficacy of the law, which applies to an enforced performance of the contract by a payment of an equivalent for nonperformance. The obligation does not inhere and subsist in the contract itself, proprio vigore, but is the law applicable to the contract. The term is used in this sense in the clause of a federal constitution prohibiting laws impairing the obligation of contracts." Ogden v. Saunders, 25 U. S. (12 Wheat.) 213, 215, 216, 6 L. Ed. 606.

The term "obligation" has been treated in extenso by many learned moral and civil writers, and has been somewhat mystified by classification, and its correct use in connection with the various and numerous subjects in which it has been applied has not

"Obligation fraudulently incurred," as used in Rev. St. § 5521 (Code, § 191), providing that an attachment may be issued against the property of the person who fraudulently contracted the debt or incurred the obligation in favor of the other party, always been very clearly established; but should be construed to include only contracts the term, when used in relation to contracts, other than those by which a debt is created, is neither mystical nor doubtful, and its and not to include all torts and wrongful meaning is well understood by lawyers. acts to which in its widest sense the term "Obligatio ex contractu" and "obligatio est "fraudulent" could be applied. The term juris vinculum," are terms of the Roman "fraudulent" must be limited to actual and law with well-defined meaning. positive fraud, and not to embrace the wide is to bind. Obligation implies a duty, and a "Obligo" field of constructive fraud. When a person duty that may be enforced by law to perby a device or unfair way obtains credit, he form the contract according to its terms may be said to have fraudulently contracted The Constitution of the United States uses a debt. But there are many contracts to the term in this sense when it prohibits the which the assent of a party may be obtain-enactment of laws impairing the obligation ed, the effect of which is not in a strict and proper sense to create a debt. The party who has entered into such contracts, and has, by any device or unfair way, obtained from the other party his assent and the consideration, may very properly be said to have fraudulently incurred an obligation, within the meaning of the statute. Hence the fraudulent conversion of promissory notes, bills of exchange, etc., received in the usual course of business for collection, while a breach of the contract of bailment, does not create an obligation fraudulently incurred, within the meaning of the statute. Merchants' Bank v. Ohio Life Ins. & Trust Co., 12 Ohio Dec. 738, 740.

of contracts. Wachter v. Famachon, 22 N. W. 160, 161, 62 Wis. 117.

The foremost approved lexicographers, Johnson, Sheridan, Walker, and Jones, all in substance define the word "obligation" to mean the binding power of any oath, vow, duty, or contract; an act which binds any man to some performance. The obligation of a contract is, then, its binding power. It is that which compels its performance. In other words, it is, as defined by the Supreme Court of the United States in Sturges v. Crowninshield, 17 U. S. (4 Wheat.) 122, 197, 4 L. Ed. 529, the law of the contract. Contracts between individuals, voluntarily made

and abstractly considered, have no law in perform them by one party and the right their composition; but the law of the land says that they shall be fulfilled as made, and applies a remedy in case of a breach, and both of these constitute the obligation. Blair v. Williams, 14 Ky. (4 Litt.) 34, 65.

acquired by the other. There can be no other standard by which to ascertain the extent of either than that which the terms of the contract indicate, according to their settled legal meaning. When it becomes the right, compels one party to perform the consummated, the law defines the duty and thing contracted for, and gives the other a right to enforce the performance by remedies then in force. McCracken v. HayWard, 43 U. S. (2 How.) 608, 612, 11 L. Ed. 397; Ogden v. Saunders, 25 U. S. (12 Wheat.)

the

“The obligation of a contract is the law which binds the parties to perform their agreement." Sturges v. Crowninshield, 17 U. S. (4 Wheat.) 122, 197, 4 L. Ed. 529; Ogden v. Saunders, 25 U. S. (12 Wheat.) 213, 256, 6 L. Ed. 606; Mason v. Haile, 25 U. S. (12 Wheat.) 370, 379, 6 L. Ed. 660; Bedford v. Eastern Building & Loan Ass'n of Syracuse, N. Y., 21 Sup. Ct. 597, 602, 181 son, 70 Ala. 145, 151; Forqueran v. DonnalU. S. 227, 45 L. Ed. 834; Walker v. White-1, 7 W. Va. 114, 139; Cutts v. Hardee, 38 head, 83 U. S. (16 Wall.) 314, 317, 21 L. Ed. Ga. 350, 369; Larrabee v. Talbott (Md.) 5 357; Von Hoffman v. City of Quincy, 71 U. Gill, 426, 440, 46 Am. Dec. 637.

213, 285, 6 L. Ed. 606; Edwards v. William

S. (4 Wall.) 535, 550, 18 L. Ed. 403; Curran The obligation of a contract is the duty v. Arkansas, 56 U. S. (15 How.) 304, 319, 14 to perform it, whatever may be its nature. L. Ed. 705; Savings & Loan Ass'n v. Al- It may be a moral obligation, or legal obligaturas County (U. S.) 65 Fed. 677, 681; Wach- tion, or both; but when we speak of “obter v. Famachon, 22 N. W. 160, 162, 62 Wis. ligation" generally, we mean legal obligation 117; Wood v. Malin, 10 N. J. Law (5 Halst.)—that is, the right to performance which 208, 209; Bates v. Gregory, 26 Pac. 891, 893, 89 Cal. 387; Beverly v. Barintz, 42 Pac. 725, 726, 55 Kan. 466, 31 L. R. A. 74, 49 Am. St. Rep. 257; Greeff v. Equitable Life Assur. Soc., 57 N. Y. Supp. 871, 878, 40 App. Div. 180; Shrigley v. Black, 71 Pac. 301, 306, 66 Kan. 213; Edwards v. Williamson, 70 Ala. 145, 151; Phinney v. Phinney, 17 Atl. 405, 409, 81 Me. 450, 4 L. R. A. 348, 10 Am. St. Rep. 266; Long v. Walker, 105 N. C. 90, 98, 10 S. E. 858-860; Baily v. Gentry, 1 Mo. 164, 170, 13 Am. Dec. 484.

the law confers on one party, and the corresponding duty of performance to which it binds the other. Larrabee v. Talbott (Md.) 5 Gill, 426, 440, 46 Am. Dec. 637 (citing Story, Confl. Laws, § 226).

The obligation of a contract is found in the terms in which that contract is expressed, and is the duty thus assumed by the contracting parties, respectively, to perform the stipulations of the contract. Barlow v. Gregory, 31 Conn. 261, 265.

"Obligation of contract" means the legal compulsion or obligement that grows out of a contract and makes a part of it, that enters into it at the time it is made, and that is intended to be protected and maintained in its full force and vigor by the language of the Constitution. Webster v. Rose, 53 Tenn. (6 Heisk.) 93, 97, 19 Am. Rep. 583.

The obligation of a contract is the legal tie which imposes the necessity of doing or abstaining from a particular act, as distinguished from the imperfect obligation arising from gratitude, charity, or other moral duties, binding upon the conscience, but having no legal remedy for their enforcement. This latter is the essence of the legal obligation. Moore v. Holland, 16 S. C. 15, 29.

The obligation of a contract consists in its binding force on the party who makes it. This depends on the laws in existence when it is made. These are necessarily referred to in all contracts, and form a part of them, as the measure of the obligation to

The obligation of a contract, within the meaning of the Constitution, is not merely the moral obligation of the party who received the consideration, and is therefore equitably bound to perform the agreement on his part; but it is the legal obligation, which embraces not only the right of the party entitled to performance, but the power by law to enforce and consummate that right by compelling that performance. It is this legal obligation, this right to enforce and make effectual by legal compulsion in the case of unexecuted contracts, which is referred to in the Constitution as the obligation of a contract which the state Legis latures are forbidden to impair. Richardson V. Cook, 37 Vt. 599, 602, 88 Am. Dec. 622.

the most part its binding force upon the ob"Obligation of a contract" imports for ligor to perform the duty agreed on, according to the nature and effect of the contract. It relates to the performance, rather than to a breach, of the contract. Coffman V. Bank of Kentucky, 40 Miss. 29, 31, 90 Am. Dec. 311.

the time and place of the making of a conIt is settled that the laws subsisting at tract, and where it is to be performed, enter into and form a part of it, as if they were expressly referred to or incorporated in its terms. This principle embraces alike those which affect its validity, construction, discharge, and enforcement. Von Hoffman v. City of Quincy, 71 U. S. (4 Wall.) 535, 550, 18 L. Ed. 403; Louisiana v. Police Jury of Parish of St. Martin, 4 Sup. Ct. 648, 650, 111

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