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ished, etc., imply an executed instrument, or, tarily undertakes to do the thing promised. at least one which on its face purports to be The obligation—that which, by a force stron. executed by somebody. They would not in- ger than his dissenting inclination or his clude false or bogus bonds, which bear no repelling interest, constrains his will or ties signature whatever. United States v. Wil. him to the performance of his promise, liams (U. S.) 14 Fed. 550, 552. A bond issued whether he continue willing or not, and but by a mining company and resembling a Unit- for which he would, in any instance, refuse ed States bond, but not purporting to be such performance-is the creature exclusive executed by any party whatever, is not ly of law. The contract is the occasion, but an obligation or other security, within the it is not the efficient cause, of obligation. meaning of the statute. United States v. It is manifestly the legal obligation of conSprague (U. S.) 48 Fed. 828, 830.

tracts which such legislation is forbidden by

the Constitution to impair. Wood v. Wood Contract.

(S. C.) 14 Rich. Law, 148, 154, 156. The term "obligation," as used in Pub. St. c. 60, par. 71, allowing a counterclaim in

Debt or Hability. an action arising on obligation, means con The term "obligation," as used in an attract, and comprehends all causes of action tachment affidavit, alleging that defendant arising ex contractu, as distinguished from fraudulently contracted the debt or incurred causes of action arising ex delicto. Morri- the obligation, was synonymous with the son v. Lovejoy, 6 Minn. 319, 353 (Gu. 224. term "debt," the obligation and the debt 236).

meaning necessarily the same thing; and The word "obligation,” in a strict, tech. Por uncertainty by reason of the use of the

therefore the affidavit was not rendered void nical sense, means properly a bond. 2 Bl. Comm. 340. But, as used in Comp. st. disjunctive conjunction “or" between the allep. 541, § 71, providing that a counterclaim gation that the debt was fraudulently con"must be one arising out of the following

tracted and the allegation that the obligation

was fraudulently incurred. Emerson v. De causes of action:

(2) In an action arising on obligation, any other cause of ac

troit Steel & Spring Co., 58 N. W. 659, 660,

100 Mich. 127. tion arising also on obligation, and existing at the commencement of the suit”—was in

Gen. St. 1889, par. 1268, providing that tended to receive a more liberal construction, any two or more railroad companies are and to apply to all matters arising ex con- authorized to consolidate and form one comtractu. Folsom v. Carli, 6 Minn. 420, 426 pany, subject to all the "obligations and lia(Gil. 284, 289), 80 Am. Dec. 456.

bilities to the state” which belong to or rest A partnership indebtedness is an "obll- upon either of the companies making such gation," within Code Civ. Proc. $ 235, pro- clude all claims, debts, or other pecuniary

consolidation, should be construed to inviding that, when a judgment is recovered against one or more of several persons joint. It obligations to the state only were intend

demands of each of the original companies. ly indebted upon an obligation by proceedings as provided in this act, those who are ed, it would not have been necessary to have not originally served may be summoned to added the words "liabilities to the state," show cause why they should not be bound by because "liability” is defined as the state of the judgment as if originally served. It does being liable, as the liability of an insurer, not contemplate merely an indebtedness aris liability to the law, responsibility, accountaing upon and evidenced by an agreement in bleness, accountability, or bounden duty. writing. “Obligation” is a generic word, "Obligation” is also defined as that which and when used in its broadest sense includes obligates or constrains; the binding power all kinds of contracts by which a person may of a promise, or a contract; a bond with a become bound, and should be so construed condition annexed and a penalty for nonunless, from the connection in which it is fulillment. In a larger sense it is an acused, it is to be gathered that the Legislature knowledgment of a duty to pay a certain intended to give it more limited significance. sum or do a certain thing; responsibility; Sawyer v. Armstrong, 47 Pac. 391, 392, 23

accountableness; bounden duty. To hold Colo. 287.

that obligations and liabilities are limited

to the state only would be to say that the The word “obligation," in its origin, im- Legislature was guilty of a repetition of the ports compulsion, the tying or binding of same meaning in different words. On the one against or irrespective of his consent. other hand, if obligations and liabilities are But consent is of the essence of a contract. both given their full force and effect, “obliThe presence of compulsion on either side gations" may be construed as embracing all is fatal to its existence. The contract, there pecuniary duties in the way of being answerfore, or act of contracting, does not create able for debts, demands, etc. “Liabilities" an obligation, and does not of itself put any may mean burdens imposed by the Constituforce upon the contracting party, since by tion and the statutes; that is, the responsithe very nature of the transaction he volun- bility 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.

Any memorandum in writing under seal, "Obligation,” as used in Code, $ 179, whereby a debt is acknowledged to be owsubd. 4, permitting the arrest of a defendant ing, will obligate the party to pay. Cover for fraud in incurring the "obligation," as V. Stem, 10 Atl. 231, 232, 67 Md. 449, 1 Am. used in a general sense, includes all the St. Rep. 406. cases beyond those embraced in the first

An engagement entered into by a bank clause, where the fraud was committed in under its corporate seal is properly termed contracting the debt for which the action

an "obligation." Kemmerer v. Wilson, 31 is brought. The word is to be construed in Pa. (7 Casey) 110, 113. this connection as equivalent to "legal liability” or “legal duty." Crandall v. Bryan

Draft or note. (N. Y.) 15 How. Prac. 48, 53, 5 Abb. Prac. 162.

The term "obligation or written con

tract,” in the provision of the statute deThe reward authorized by Act March claring that an obligation or written con19, 1899, to be paid to the person who shall tract of several persons shall be joint and be first in obtaining an artesian well in the several, unless otherwise expressed, held not county, offering the reward, and providing to embrace or apply to promissory notes or that, on the board of supervisors being satis- bills of exchange. Gale v. Myers (Del.) 4 fied with the requirements having been com- Houst. 546, 547. plied with, it shall draw a warrant on the treasurer, and that all expenses shall be

A protested draft is not an obligation, chargeable to the county, etc., is an obliga- within the meaning of the provisions of Act tion within the meaning of Act Cong. July Pa. April 16, 1850, declaring that the as30, 1886, c. 818 (24 Stat. 170), limiting the signees of an insolvent bank shall receive indebtedness of any county to 4 per cent. of in payment of debts due to said bank its own the value of the taxable property, and pro- notes and obligations and the checks of its viding that all bonds or obligations in ex- depositors at par. Basehore v. Rhodes, 85 cess of such amount shall be void. McRae

Pa. 44, 46. . Cochise County (Ariz.) 44 Pac. 299, 300, 33 L. R. A. 851, 56 Am. St. Rep. 579.

Duty of person occupying fiduciary re

lations. Deed or sealed instrument.

The duty of an administratrix to ac

count is an "obligation," within Code Civ. An obligation is defined to be "a deed Proc. $ 382, subd. 1, limiting actions on conin writing whereby one man doth bind bim-tract obligations or liabilities, express or self to another to pay a sum of money or to implied, to six years after the cause of acdo some other thing." Cover V. Stem, 10 Atl. 231, 232, 67 Md. 449, 1 Am. St. Rep. 406 7, 8, 2 Con. Sur. 156.

tion accrued. In re Nicholls, 8 N. Y. Supp. (citing Shep. Touch.); Jeffery v. Underwood, 1 Ark. (1 Pike) 108, 112.

Enforceable obligation. The word "obligation," in its most tech- "AD obligation, whether arising from nical signification, imports ex vi termini a contract or by operation of law, is one bindsealed instrument—that is, a bond; but in ing upon the obligor and one that may be its more popular sense the term signifies an enforced by the obligee. It does not rest in instrument or writing by which a contract the option of the actor to perform or to reis witnessed. In Comyn's Digest an obliga- frain from performing at his own will. It tion is defined to be a deed whereby a man does not depend for its existence upon the binds himself under a penalty to do a thing. happening of a future event or the event of Hargroves v. Cooke, 15 Ga. 321, 330; Mor- any contingency. It is an executed, a comrison v. Lovejoy, 6 Minn. 319, 353 (Gil. 224, pleted thing, having an existence in the 236).

present, binding in the present upon the obIt is said there are only three things obligee." Keith v. Haggart, 33 N. W. 465,

ligor, and capable of being enforced by the essentially necessary to the making of a good "obligation," namely, writing on paper

468, 4 Dak. 438. or parchment, sealing, and delivering; and

Evidence of debt. It has been adjudged not to be necessary that the obligor should sign or subscribe his

As used in a will providing that if, at name, because the subscribing is no essen- the distribution, there should be due to the tial part of the deed, the sealing being suffi- estate from any of the legatees obligations cient. Jeffery v. Underwood, 1 Ark. (1 Pike) of any kind or evidences of debt of any kind, 108, 112 (citing Bac. Abr.).

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 word "obligation" appeared alone in another all those things mentioned in the first section of the act, the phrase "obligation or clause, namely, obligations of any kind and other security of the United States" should evidences of debt of any kind. Hill v. be construed to have referred to the words Bloom, 7 Atl. 438, 440, 41 N. J. Eq. (14 Stew.) used therein separately, and not as a phrase; 276.

and hence the word "obligation," as used

alone, included national currency. United "Obligation,” as used in Code, $ 1064, States v. Rossvally (U. S.) 27 Fed. Cas. 901, making an order, bill of exchange, bond,

902. promissory note, or other obligation a subject of larceny, should be construed to in. Order for payment of money. clude a duebill; for a duebill. is evidence of

Orders on the federal treasury, payable an obligation to pay money. The maker by on demand, for interest due on United it acknowledges the indebtedness, and the States consols, are not "obligations of the law implies and raises the obligation to pay United States,” within the statutory proviit. State v. Campbell, 9 S. E. 410, 411, 103 sion exempting stocks, bonds, and other obN. C. 344.

ligations of the United States from state and

municipal taxation. Hibernia Savings & Judgment.

Loan Soc. v. San Francisco, 72 Pac. 920, 139 The words "contract or obligation,” as Cal. 205, 96 Am. St. Rep. 100. used in Act June, 1879, which provides that "the rate of interest upon the loan or for Partnership indebtedness. bearance of any money, goods, or things in

Code Civ. Proc. $ 235, provides that, action shall be $6 upon $100 for one year, when a judgment is recovered against one or and after that rate for a greater or less sum, more of several persons jointly indebted or for a longer or shorter time; but nothing upon an obligation by proceeding as provided herein contained shall be so construed as to in the act, those who were not originally in any way affect any contract or obliga- served may be summoned to show cause tion made before the passage of this act," why they should not be bound by the judg. would include a judgment, so that the inter- ment as if originally served. Chapter 3, est on a judgment recovered before the pass- 42, provides that, if plaintiff recover judg. age of this act would not be reduced by the ment, it may be enforced against all the deact. Prouty v. Lake Shore & M. S. Ry. Co. fendants thus jointly liable as to their joint (N. Y.) 26 Hun, 546, 549. Contra, see O'Brien property, and as to the separate property of v. Young, 95 N. Y. 428, 435, 47 Am. Rep. 64. the defendants served. Held, that the word

"obligation" in section 235 includes a partLimitation on powers of corporation.

nership indebtedness. “This word,” says the Laws 1883, c. 175, which provides that, court, "when used in a statute as the name where any other state shall impose any “ob- of a contract, is a generic word, including ligation” on co-operative life insurance com- all kinds of contracts by which a person may panies of New York doing business in such become bound, and should be so construed, other states, “the like obligations are hereby unless from the connection in which it is Imposed on similar corporations of such oth- used it is to be gathered that the Legislature er state transacting business in this state,” intended to give it a more limited signifidoes not impose on a Massachusetts corpo- cation.” Sawyer v. Armstrong, 23 Colo. 287, ration doing business in New York the pro- 290, 47 Pac. 391. hibition of St. Mass. 1885, c. 183, § 10, that no policy or certificate shall be issued on Recognizanco. "the life of any person more than 60 years A New Jersey statute of limitations pra of age," since it is the obligations, and not vides that every action of debt or covenant, the prohibitions, that are imposed on foreign etc., upon any obligation for the payment companies by the retaliatory act of 1883. of money only, shall be commenced within a The provision of the statute referred to is certain time. Held, that the words “oblievidently one to be strictly construed, and, gation for the payment of money” are used when so construed, the term "obligation" in the sense of “contracts," and do not inwill not be held to include a limitation upon clude a recognizance, since a recognizance the powers of the corporations referred to. has more of the nature of a judgment than Griesa v. Massachusetts Ben. Ass'n, 15 N. Y. a contract. Elsasser v. Haines, 18 Atl. 1095, Supp. 71, 74, 60 Hun, 581.

1100, 52 N. J. Law (23 Vroom) 10.

National currency.

Tort. Where 13 Stat. 218, § 13, provided that "Obligation,” as used in legislative pro the words "obligation or other security of visions relative to a legal duty or liability, the United States," used in the act, should means a duty or liability which may arise include national currency, but the phrase from an oral or written contract, or in some "obligation or other security of the United, 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 OBLIGATION OF CONTRACT. no action against the city on a contract, obligation, or liability, express or implied, shall See "Impairing Obligation of Contract.” be commenced, except within one year after

"The Institutes (liber 3, tit. 4, Cooper's the cause of action shall have accrued, only

translation) say: 'An obligation is the includes such claims, accounts, or demands as are required to be presented for audit, charge of the law by which we are necesand does not include liabilities for tort. MC sarily bound to make some payment accordGaffin v. City of Cohoes, 74 N. Y. 387, 388, 30 | ing to the law of the land.' Pothier, in his Am. Rep. 307.

Treatise Concerning Obligations, in speaking

of the obligation of contracts, calls it ‘vinThe word “obligation," as used in Act culum legis,' the chain of the law. Paley Feb. 16, 1865, amending Code Civ. Proc. 8 (page 56) says: "To be obliged is to be urged 191, and providing that an attachment may by violent motives, resulting from the comissue in a civil action for the recovery of mand of another.' From these authorities, money when defendant has “fraudulently and many more might be cited, it may be or criminally contracted the debt or incurred fairly concluded that the obligation of the the obligation for which the suit is about to contract consists in the power and efficacy be or has been brought,” is equivalent to of the law, which applies to an enforced "liability" in cases in which the element of performance of the contract by a payment criminality is present, and therefore an at- of an equivalent for nonperformance. The tachment will lie to recover unliquidated obligation does not inhere and subsist in the damages for assault and battery; for that is contract itself, proprio vigore, but is the law a liability in the origin of which the element applicable to the contract. The term is used of criminality is present. Sturdevant v. Tut- in this sense in the clause of a federal contle, 22 Ohio St. 111, 114.

stitution prohibiting laws impairing the ob

ligation of contracts." Ogden V. Saunders, OBLIGATION

25 U. S. (12 Wheat.) 213, 215, 216, 6 L. Ed. FRAUDULENTLY IN

606. CURRED.

The term "obligation" has been treated "Obligation fraudulently incurred,” as

in extenso by many learned moral and civil used in Rev. St. $ 5521 (Code, $ 191), providwriters, and has been somewhat mystified ing that an attachment may be issued against the property of the person who nection with the various and numerous sub

by classification, and its correct use in confraudulently contracted the debt or incurred jects in which it has been applied has not 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 “fraudulent must be limited to actual and juris vinculum,” are terms of the Roman positive fraud, and not to embrace the wide is to bind. Obligation implies a duty, and a

law with well-defined meaning. "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 obtained, the effect of which is not in a strict and of contracts. Wachter v. Famachon, 22 N.

enactment of laws impairing the obligation proper sense to create a debt.

The party who has entered into such contracts, and

W. 160, 161, 62 Wis. 117. bas, by any device or unfair way, obtained The foremost approved lexicographers, from the other party bis assent and the con- Johnson, Sheridan, Walker, and Jones, all sideration, may very properly be said to have in substance define the word "obligation" fraudulently incurred an obligation, within to mean the binding power of any oath, vow, the meaning of the statute. Hence the duty, or contract; an act which binds any fraudulent conversion of promissory notes, man to some performance. The obligation bills of exchange, etc., received in the usual of a contract is, then, its binding power. It course of business for collection, while a is that which compels its performance. In breach of the contract of bailment, does not other words, it is, as defined by the Supreme create an obligation fraudulently incurred, Court of the United States in Sturges v. within the meaning of the statute. Mer-Crowninshield, 17 U. S. (4 Wheat.) 122, 197, chants' Bank v. Ohio Life Ins. & Trust Co., 4 L. Ed. 529, the law of the contract. Con12 Ohio Dec. 738, 740.

tracts 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 acquired by the other. There can be no says that they shall be fulfilled as made, other standard by which to ascertain the and applies a remedy in case of a breach, extent of either than that which the terms and both of these constitute the obligation. of the contract indicate, according to their Blair v. Williams, 14 Ky. (4 Litt.) 34, 65. settled legal meaning. When it becomes “The obligation of a contract is the law the right, compels one party to perform the

consummated, the law defines the duty and which binds the parties to perform their agreement.” Sturges v. Crowninshield, 17

thing contracted for, and gives the other a U. S. (4 Wheat.) 122, 197, 4 L. Ed. '529; right to enforce the performance by the Ogden v. Saunders, 25 U. S. (12 Wheat.) 213, remedies then in force. McCracken v. Hay256, 6 L. Ed. 606; Mason v. Haile, 25 u. ward, 43 U. S. (2 How.) 603, 612, 11 L. Ed. S. (12 Wheat.) 370, 379, 6 L. Ed. 660; Bed 397; Ogden v. Saunders, 25 U. S. (12 Wheat.) ford v. Eastern Building & Loan Ass'n of

213, 285, 6 L. Ed. 606; Edwards v. WilliamSyracuse, 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- ly, 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. 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, the law confers on one party, and the corre89 Cal. 387; Beverly v. Barintz, 42 Pac. 725, sponding duty of performance to which it 726, 55 Kan. 466, 31 L. R. A. 74, 49 Am. St. binds the other. Larra bee v. Talbott (Md.) Rep. 257; Greeff v. Equitable Life Assur. 5 Gill, 426, 440, 46 Am. Dec. 637 (citing Soc., 57 N. Y. Supp. 871, 878, 40 App. Div. Story, Conil. Laws, $ 226). 180; Shrigley V. Black, 71 Pac. 301, 306, 66 Kan. 213; Edwards v. Williamson, 70 Ala.

The obligation of a contract, within the 145, 151; Phinney v. Phinney, 17 Atl. 405, meaning of the Constitution, is not merely 409, 81 Me. 450, 4 L. R. A, 348, 10 Am. st. the moral obligation of the party who reRep. 266; Long v. Walker, 105 N. C. 90, 98, ceived the consideration, and is therefore 10 S. E. 858–860; Baily v. Gentry, 1 Mo. equitably bound to perform the agreement 164, 170, 13 Am. Dec. 484.

on his part; but it is the legal obligation,

which embraces not only the right of the The obligation of a contract is found in party entitled to performance, but the power the terms in which that contract is express- by law to enforce and consummate that ed, and is the duty thus assumed by the con right by compelling that performance. It is tracting parties, respectively, to perform the this legal obligation, this right to enforce stipulations of the contract. Barlow v. Greg- and make effectual by legal compulsion in ory, 31 Conn. 261, 265.

the case of unexecuted contracts, which is "Obligation of contract” means the legal referred to in the Constitution as the oblicompulsion or obligement that grows out of gation of a contract which the state Legis a contract and makes a part of it, that en- latures are forbidden to impair. Richardson ters into it at the time it is made, and that v. Cook, 37 Vt. 599, 602, 88 Am. Dec. 622. is intended to be protected and maintained in its full force and vigor by the language the most part its binding force upon the ob

"Obligation of a contract" imports for of the Constitution. Webster v. Rose, 53 Tenn. (6 Heisk.) 93, 97, 19 Am. Rep. 583.

ligor to perform the duty agreed on, accord

ing to the nature and effect of the contract. The obligation of a contract is the legal It relates to the performance, rather than tie which imposes the necessity of doing or to a breach, of the contract. Coffman v. abstaining from a particular act, as distin- Bank of Kentucky, 40 Miss. 29, 31, 90 Am. guished from the imperfect obligation aris- Dec. 311. ing from gratitude, charity, or other moral

It is settled that the laws subsisting at duties, binding upon the conscience, but hav. ing no legal remedy for their enforcement the time and place of the making of a conThis latter is the essence of the legal obli- tract, and where it is to be performed, enter

into and form a part of it, as if they were gation. Moore v. Holland, 16 S. C. 15, 29.

expressly referred to or incorporated in its The obligation of a contract consists in terms. This principle embraces alike those its binding force on the party who makes it. which affect its validity, construction, disThis depends on the laws in existence when charge, and enforcement. Von Hoffman v. it is made. These are necessarily referred City of Quincy, 71 U. S. (4 Wall.) 535, 550, to in all contracts, and form a part of 18 L Ed. 403; Louisiana v. Police Jury of them, as the measure of the obligation to Parish of St. Martin, 4 Sup. Ct. 648, 650, 111

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