Gambar halaman

U. S. 716, 28 L. Ed. 574; Peabody v. Stetson, Remedy as part of. 34 Atl. 74, 77, 88 Me. 273.

The obligation of a contract includes the The obligation of a contract, within the laws relating to remedies for the enforcemeaning of the Constitution, is a valid sub- ment thereof. Gunn v. Barry, 82 U. S. (15 sisting obligation, not a contingent or specu- Wall.) 610, 623, 21 L. Ed. 212. Contra, see lative one. Barton Nat. Bank V. Atkins, Jones v. McMaban, 30 Tex. 719, 731. 47 Atl. 176, 178, 72 Vt. 33.

A law is the true source of the obligaA contract is an agreement between two tion of contract, and the extent of the oblior more persons to do or not to do a particu- gation is defined by law in force at the time lar thing, and the obligation of a contract is the contract is made. The contract alone found in the terms in which that contract has no legal obligation, because there is no is expressed, and is the duty thus assumed law to enforce it. The contract is made by the contracting parties, respectively, to by the parties and sanctioned by the law, perform the stipulations of the contract. which promises to enforce performance Barlow v. Gregory, 31 Conn. 261, 265. should the party decline performance himThe obligation of a contract, within the

self. Townsend v. Townsend, 7 Tenn. (Peck) meaning of the constitutional prohibition of 1, 14 Am. Dec. 722. laws impairing the obligation of a contract, The term "obligation, whether we conconsists in that which a person has under- sult its etymology or its general acceptation taken to perform. If he has agreed to pay in our own language, will be found to sig. a certain sum at a specified period, his con- nify a ligament or tie, something which tract binds him to pay that sum on that day, binds, or obliges us to do or not to do some and this is its obligation. Smith v. Mead, 3 act. It is derived immediately from the Conn. 253, 256, 8 Am. Dec. 183.

Latin substantive "obligatio," which is from The obligation of a contract consists in the verb “obligare,” to tie, to bind, to oblige; the power and efficacy of the law, which and it is in the same sense that the English applies and enforces a performance of the words derived from these are universally contract, or the payment of an equivalent used and received by all who either speak for nonperformance. The obligation does not or write the English language. The obligainhere and subsist in the contract itself, but tion of a contract, therefore, is and can be in the law applicable thereto. Shrigley v. nothing else but that which obliges a person Black, 71 Pac. 301, 306, 66 Kan. 213.

to perform his contract, or to repair the in

jury done by a failure to perform it. To the The obligation of a contract is found in duty of performing our contracts, or of rethe terms in which the contract is expressed, pairing the injury done by a failure to perand is the duty assumed by the contracting form them, we are, in a state of civil society, parties, respectively, to perform the stipu- not only bound in conscience, but we are, lations of such contract. Barlow v. Greg. moreover, obliged by the remedy which the ory, 31 Conn. 261, 265.

law gives to enforce that duty; and as the In construing the provisions of the Unit- remedy allowed by law upon a contract is ed States Constitution and the Iowa Consti- the only civil means which obliges to the tution, probibiting the state from passing performance of the contract, or the repairing any law impairing the obligation of con- of the injury done by a failure to perform tracts, it is said that “perhaps as good a defi- it, the legal obligation of the contract evinition of 'obligation' as can be given is that dently consists in that alone. It can consist contained in Lasly v. Phipps, in the Su- in nothing else; for if the remedy be withpreme Court of Missouri, reported in 13 Am. held or taken away the contract is no legal Law Reg. (N. S.) 236, as follows: "The ob

ligation. The clause in the Constitution ligation of a contract is the duty of perform of the United States which prohibits the ance according to its terms; the means of states from passing any law impairing the enforcement being the part of the obliga obligation of contracts refers to this legal tion which the states cannot by legislation obligation. Blair V. Williams, 14 Ky. (4 impair. It has also been said that the ob- Litt.) 34, 36; Lapsley v. Brashears, Id. 47, ligation of a contract is its binding power;

53. that which compels the performance. Or,

The obligation of a contract includes ev. as defined by the Supreme Court of the erything within its obligatory scope. Among United States (Sturgis v. Crowningbield, 17 these elements nothing is more important U. 8. [2 Wheat.] 122, 197, 4 L. Ed. 529), than the means of enforcement. Peabody the law of the contract. Obligation is cor

V. Stetson, 34 Atl. 74, 77, 88 Me. 273; Cocbrelative of right. Obligation rests upon one

ran v. Ward, 29 N. E. 795, 797, 5 Ind. App. party; right belongs to the other." Holland 89, 51 Am. St. Rep. 229; Edwards v. Kear5. Dickerson, 41 Iowa, 367, 370.

zey, 96 U. S. 595, 600, 24 L. Ed. 793. This

is the breadth of its vital existence. WithContract distingaishod.

out it the contract as such, in the view of See “Contract."

the law, ceases to be, and falls into the class

of those imperfect obligations, as they are ged to perform it. Rader v. Union Tp. Comtermed, which depend for their fulfillment mittee, 44 N. J. Law (15 Vroom) 259, 260; upon the will and conscience of those upon Louisiana v. City of New Orleans, 102 U. whom they rest Edwards v. Kearzey, 96 U. 8. 203, 26 L. Ed. 132; Antoni v. Greenhow, S. 595, 600, 24 L. Ed. 793. Jones v. National 2 Sup. Ct. 91, 100, 116, 107 U. S. 769, 27 Le Cotton Oil Co., 72 S. W. 248, 249, 31 Tex. Ed. 468; Phinney v. Phinney, 17 Atl. 405, Civ. App. 420 (citing Edwards v. Kearzey, 407, 81 Me. 450, 4 L, R. A. 348, 10 Am. St. 96 U. S. 595, 596, 24 L. Ed. 793); Long v. Rep. 266. Walker, 105 N. O. 90, 98, 10 S. E. 858, 859, 860.

By the "obligation of contracts" is meant

the legal, and not the moral, obligation; the Mr. Justice Trimble, in Ogden v. Saun- law which obliges the parties to the perders, 25 U. S. (12 Wheat.) 213, 350-352, 6 formance of a contract, embracing in this L. Ed. 606, says: “The obligation of the con- idea as well the law which is applicable to tract consists in the power and efficacy of the contract itself as that which pertains the law, which applies to and enforces per- to the remedy for its enforcement. Rutland formance of the contract, or the payment of v. Copes (S. C.) 15 Rich. Law, 84, 105. an equivalent for nonperformance." Mr. Webster, in the argument of the same case, OBLIGATION OF RECORD. defines it to be “the duty of performing a legal agreement.” Whatever may be the A bond taken by an officer of the court correct definition (and upon this point scarce- by authority of law, and required to be re ly any two judges agree), the position that turned into court, is, when so returned and the remedial laws of the state in existence placed upon the files, an "obligation of recat the time form part of it is untenable. ord.” Lawton v. State, 5 Tex. 270, 271. The provision of the Federal Constitution, denying to any state the right to pass any OBLIGATION OR OTHER SECURITY. law impairing the obligation of contracts, does not interfere with the right of a state The words "obligations or other securito pass laws acting upon the remedy. Cutts ty" of the United States, as used in Rev. v. Hardee, 38 Ga. 350, 369.

St. U. S. $ 5414 (U. S. Comp. St. 1901, p. There is a distinction between the ob- of any obligation or security of the United

3662), punishing the forging or counterfeiting ligation of a contract and the remedy for its States, are defined by section 5413 so as to enforcement. Whatever pertains merely to

mean all bonds, certificates of indebtedness, the remedy may be changed or modified at the discretion of the Legislature, without notes, treasury notes, fractional notes, cer

national currency, coupon, United States impairing the obligation of the contract, pro- tificates of deposit, bills, checks, drafts for viding the remedy be not wholly taken away, nor so hampered or reduced in effect of the United States, and other representa

money drawn by or upon authorized officers as to render the contract practically incapa- tions of value, of whatever denomination, ble of enforcement. Smith v. Jennings, 45

which have been or may be issued under S. È. 821, 825, 67 S. C. 324.

any act of Congress. Neall v. United States The distinction between the obligation (U. S.) 118 Fed. 699, 706, 56 C. C. A. 31. of contract and the remedy given by the Legislature to enforce that obligation exists OBLIGATORY BILL. in the nature of things. Without impairing

See "Bill Obligatory." the obligation of the contract, the remedy may certainly be modified as the wisdom of the nation shall direct. Wood v. Malin, 10 OBLIGATORY WRITING. N. J. Law (5 Halst.) 208, 209.

See "Writing Obligatory.” The obligation of a contract is found in the terms of the agreement sanctioned by OBLIGE. moral and legal principles, and consists in acts of the parties, and is ascertained by

The meaning of Civ. Code La. art. 2315, the binding words of the contract; while the providing that “every act whatever of man, mode of enforcing the obligation emanates that causes damage to another, obliges him from the lawmaking power, which may be through whose fault it happened, to repair exercised at the discretion of the Legisla- it,” is that under our law the wrong done ture, within the prescribed limits of the Con- by one human being to another or to his stitution. Charles River Bridge v. Warren estate creates an obligation, i. e., brings Bridge, 36 U. S. (11 Pet.) 420, 573, 9 L. Ed. at once into existence the relation of debtor 773, 938.

and creditor, between the wrongdoer and

the injured party. This provision includes The obligation of the contract is the corporations as among those who are submeans provided by law by which it can be jected to this obligation. United States v. enforced-by which the parties can be obli- City of New Orleans (U. S.) 17 Fed. 483, 487. OBLIGEE.

whereby its invalidity appears on its face the

moment it is produced. Under a statute An obligee or creditor is the person in

providing that a will may be revoked by favor of whom some obligation is contracted, whether such obligation be to pay a sum of drawn lengthwise through the name of tes

burning, tearing, or obliterating it, a line money, or to do or not to do something. tatrix, and an upright line through each of Civ. Code La. 1900, art. 3556, subd. 20.

the words thereof, accompanied by a declaraThe parties to a lease are the lessor tion of intention to destroy the will, is a suffand lessee, neither of whom can with pro

cient obliteration. Glass V. Scott, 60 Pac. priety be called "obligee"; and therefore an 186, 188, 14 Colo. App. 377. act providing for the assignment of notes and

"Obliterating" a will includes drawing other instruments in writing, and allowing a strong black line over and along the wbole a defendant in a suit by the obligee or payee signature. Baptist Church v. Robbarts, 2 Pa. of any instrument in writing to plead a want (2 Barr) 110, 111. of consideration, cannot apply to an action on a lease. Dunbar v. Bonesteel, 4 Ill. (3

"Obliteration," within the meaning of Scam.) 32, 34.

the statutes of wills of 1833, authorizing the

revocation of wills by obliteration, etc., does As used in an act relating to promissory not require the effacing of the letters of the notes, and providing that, in any action on will so completely that they cannot be read. & note or instrument in writing for the pay. A line drawn through the writing constitutes ment of property or money by an obligee, an obliteration, though it may leave the will the terin "obligee” has a technical meaning, as legible as before. Appeal of Evans, 58 Pa. and applies only to notes, bonds, and bills, (8 P. F. Smith) 238, 242. whether they are given for the payment of money or property or the performance of

"Obliteration," within the meaning of conditions or covenants, and not to mort. the Pennsylvania wills act, does not include gages. Hall v. Byrne, 2 Ill. (1 Scam.) 140, a careful interlineation. Appeal of Dixon, 142.

55 Pa. (3 P. F. Smith) 424.

The word "obliterating," in Act April 8, OBLIGOR.

1833, § 13, authorizing the revocation of a

will by burning, cancelling, obliterating, or "Obligor” or “debtor" is the person who destroying the same, does not include the has engaged to perform some obligation. Civ. act of testator in writing the word “obsoCode La. 1900, art. 3556, subd. 21.

lete" on the margin of his will, without sign

ing the same. Lewis v. Lewis (Pa.) 2 Watts OBLITERATE-OBLITERATION.

& S. 455, 457. To "obliterate" is to blot out; to "cancel” is to cross out. The former leaves the OBLOQUY. words illegible; the latter leaves the words legible. By either 'method a will can be bension; and to expose one to “obloquy" is

"Obloquy" is defined as blame, reprelegally revoked in whole or in part. Town- to expose him to censure and reproach, such shend v. Howard, 29 Atl. 1077, 1078, 86 Me. terms being synonymous with the word “ob285.

loquy." Bettner v. Holt, 70 Cal. 270, 275, 11 To “obliterate," in legal effect, would be Pac. 713. So that language which tends to to deface, to efface, to blot out, to destroy. injure a man in his occupation, or expose To "obliterate,” in the law, may be to alter, him to censure and reproach, is within the but certainly to alter will not necessarily be meaning of Civ. Code, $ 45, defining “libel” beld as an obliteration; and an indictment as a false and unprivileged publication which charging that defendant did falsely, felo- exposes any person to obloquy. Tonini v. niously, and without lawful authority alter, Cevasco, 46 Pac. 103, 105, 114 Cal. 266. "obliterate," and deface a receipt, without alleging in what manner or how he changed the receipt or what he did to it, is insuffi

OBNOXIOUS. cient to charge an offense. State v. Knippa, "Obnoxious," as used with reference to 29 Tex. 295, 298.

a juror, does not refer necessarily to legal A “cancellation” is, in legal meaning, an incompetency or unfitness, since a juror may equivalent to and synonymous with an “ob- be “legal” by the application of legal tests, literation." This cancellation or obliteration and yet "obnoxious” to one or the other of may be effected by words written across the the parties. State v. Fourchy, 25 South. 109, Instrument, as "obliterated” or “canceled.” 117, 51 La. Ann. 228. The end may be equally well accomplished by any erasure, partial or complete; it may be OBSCENE-OBSCENITY. done by drawing the pen through the words. Any act of this sort is effectual, for the rea- The word “obscene" is defined in the son that it puts the instrument in condition Century Dictionary as “offensive to modesty

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and decency; impure, unchaste, indecent, An instruction was approved, in a prose lewd; as, 'obscene' actions or language; 'ob- cution for the violation of a statute prohibscene' pictures. 'Obscene publication,' in law: iting the mailing of "obscene, lascivious, Any impure or indecent publication tending lewd, or indecent” publications, that the to corrupt the mind and to subvert the re question what constitutes obscene, lewd, lasspect for decency and morality.” In the civious, or indecent publications is largely & Standard Dictionary the definition is: “Or- question for the conscience and opinion of fensive to chastity, delicacy, or decency; the jury, but that, before it can be said of expressing or presenting to the mind or view such literature or publication, it must come something that decency, delicacy, and purity up to this point, that it must be calculated Corbid to be exposed.” And this is exactly with the ordinary reader to deprave his morthe definition found in Webster. In Black's als or lead to impure purposes. Dunlop v. Law Dictionary "obscene” is defined as “lewd, United States, 17 Sup. Ct. 375, 376, 165 U. S. impure, indecent.” The word cannot be said 486, 41 L. Ed. 799. to be a technical term of the law, and is not

The question whether a book, writing, susceptible of exact definition in its juridical uses. Timmons v. United States (U. S.) the jury. People v. Muller (N. Y.) 32 Hun,

picture, etc., is obscene or indecent, is for 85 Fed. 204, 205, 30 C. C. A. 74.

209, 210. Obscenity is such indecency as is calculated to promote the violation of law and Acousation of indecent offenso. the general corruption of morals. It is ap

The words "obscene, lewd, or lascivious," plied to language spoken, written, or printed, as used in Rev. St. § 3893 (U. S. Comp. St. and to pictorial productions, and includes 1901, p. 2658), probibiting the transmission of what is foul and indecent, as well as im- any obscene, lewd, or lascivious' print, writmodest or calculated to excite impure desires. ing, etc., through the mails, etc., do not apply State v. Pfenninger, 76 Mo. App. 313, 317; to a letter imputing to the person addressed United States v. Loftis (U, S.) 12 Fed. 671, an atrocious crime, though exceedingly coarse 672.

and vulgar, where it has no tendency to exThe word "obscene" is defined as “ex- cite libidinous thoughts or impure desires, or pressing or presenting to the mind or view to deprave and corrupt the morals of those something which delicacy, purity, and decen- whose minds are open to such influences. cy forbid to be expressed.” It is used in the words imply something tending to sugsuch sense in Rev. St. § 3893 (U. S. Comp. gest libidinous thoughts or excite impure de St. 1901, p. 2658), prohibiting a transmission sires. United States v. Wightman (U. S.) 29 of "obscene" books, pamphlets, etc., in the Fed. 636. mails. United States v. Bebout (U. S.) 28 Fed.

The mailing of a private sealed letter 522, 524; Same v. Britton (U. S.) 17 Fed. directed to and containing indecent charges 731, 733. Obscene writing has been defined against the mother of the writer does not conas one offensive to decency, indelicate, im- stitute the offense of mailing a letter conpure, as an indecent one. Same v. Williams

taining obscene, lewd, and lascivious matter (U. S.) 3 Fed. 484, 485.

within the statute. United States v. Wrob"Obscene," as used in Rev. St. 8 3893 (U.lenski (U. S.) 118 Fed. 495, 496. S. Comp. St. 1901, p. 2658), prohibiting the use of the mails for obscene matter, means

Insulting language. matter offensive to the common sense of de- The words “obscene, lewd, or lascivious," cency and modesty of the community, and in Rev. St. § 3893 (U. S. Comp. St. 1901, p. which is of such a character as to deprave 2658), prohibiting the sending through the and corrupt those whose minds are open to mails of any obscene, lewd, or lascivious such immoral influences. United States v. book, pamphlet, picture, paper, letter, writHarmon (U. S.) 45 Fed. 414, 417; Same v. ing, print, or other publication of an indecent Clarke (U. S.) 38 Fed. 732, 733; Same v. character, are not descriptive of language of Williams (U. S.) 3 Fed. 484, 485; Same v. merely an insulting character, but are limited Britton (U. S.) 17 Fed. 731, 733; Same v. to the use of words or pictures appealing to Bennett (U. S.) 24 Fed. Cas. 1093; Same v. the animal passion, stimulating it, corrupting Martin (U. S.) 50 Fed. 918, 919; Same v. and debauching the mind and heart. United Moore (U. S.) 104 Fed. 78.

States v. Durant (U. S.) 46 Fed. 753. The words "obscene," "lewd," "lasciv. The words "obscene, lewd, or lascivious,” or “of an indecent character," in the tous,” in Rev. St. 8 3893 (U. S. Comp. St. federal statute prohibiting the sending of 1901, p. 2658), making it criminal to transmit such matter through the mail, does not neces- any obscene, lewd, or lascivious book, etc., sarily mean that the separate words are of through the mail, do not clearly character. such a character, but the character of the ize letters inclosed in envelopes, directed to letter is to be determined by treating it as a debtor, on which the words “dead beats” a whole. United States v. Hanover (U. S.) are printed in such a manner as to attract 17 Fed. 444.

attention. The purpose of the act was to

prevent the mails from being used to circu- Within the meaning of a statute forbidlate matter to corrupt the morals of the peo- ding obscene and vulgar language in the ple. The history of this legislation clearly presence of a female, the language of a man shows that Congress determined to exclude in asking a female to go to bed with him is from the mails impure and immodest writ- vulgar and obscene. Dillard v. State, 41 Ga. ings, and that rough and coarse language is 278. not within the terms of the act. Ex parte

An article is not unmailable merely beDoran (U. S.) 32 Fed. 76, 77.

cause it offends the religious sentiments of Medical works.

the majority of the people by attacking the

doctrine of the immaculate conception of The term "obscene or indecent publica- Christ in coarse or even obscene language, tion," within the meaning of Rev. St. U. S. where it has no tendency to induce sexual § 3893 (U. S. Comp. St. 1901, p. 2658), includes Immorality; that being the only class of an illustrated pamphlet purporting to be a publications against which it is the purpose work on medical subjects, but of an in- of the statute to protect the public. United decent character, and intended for general States v. Moore (U. S.) 104 Fed. 78. circulation, even though the work consists partially of extracts from standard medical works. United States v. Chesman (U. S.)

OBSCENE EXHIBITION OF PERSON. 19 Fed. 497. See, also, United States v. The terms obscene and indecent exhibi. Smith (U. S.) 45 Fed. 476.

tion of the person as used in Pen. Code, $ In a prosecution for the publication of 343, prohibiting the "obscene and indecent an obscene libel, the court said: “That it exhibition of the person,” mean "an exposure did not matter whether the things published of those parts of the person which are in the book were true, and in conformity commonly considered as private, and which with nature and the laws of our being, or custom and decency require should be covnot. If they were unfit to be published, and ered and kept concealed from public sight. tended to inflame improper and lewd pas. They do not mean or include obscene or insions, it was an obscene libel. That even

decent prints, pictures, or written composiscientific and medical publications containing tion placed on the clothes worn on the perillustrations exhibiting the human form, if son.” Tucker v. State, 13 S. W. 1004, 28 Tex. wantonly exposed in the open markets with App. 541. a wanton and wicked desire to create a demand for them, and not to promote the

OBSERVATION. good of society by placing them in proper bands for useful purposes, would, if tending See "Ordinary Observation." to incite lewd desires, be held to be obscene libels." Commonwealth v. Landis, 8 Pbila. 453, 454.

OBSERVE. Nudity in art.

“Observed," as used in an instruction

in a personal injury action by a railroad The test of the indecency or obscenity brakeman injured by the failure of bis engiof a picture, within the meaning of Pen. neer either to see or obey certain signals, Code, 317, prohibiting the selling of any was obscure and confusing, since the term, obscene or indecent pictures or publications, in that connection, might mean either seen etc., is their capability of suggesting impure or obeyed. Western Ry. v. Williamson, 21 thoughts. It is evident that mere nudity in South. 827, 831, 114 Ala. 131. painting or sculpture is not obscenity. Some of the great works in painting and sculpture, "Observe,” as used in a liquor dealer's as all know, represent pude human forms. bond, providing that the liquor dealer sball People v. Muller, 96 N. Y. 408, 411, 48 Am. observe all the provisions of a certain act, Rep. 635; People v. Muller (N. Y.) 32 Hun, the failure of the liquor dealer to pay the 209, 211.

tax required by the act is a breach of such

condition, since "observe" means to conform Sexual impurity.

one's action or practice to; to keep; to "Obscene,” as used in Rev. St. U. 8. heed or obey; to comply with. Marshall | 3893 (U. S. Comp. St. 1901, p. 2658], mak- County v. Knoll, 69 N. W. 1146, 1148, 102 ing it a criminal offense to place in the

Iowa, 573. mails any obscene, lewd, or lascivious publication, signifies that form of immorality OBSOLETE. which has relation to sexual impurity, and bas the same meaning as is given at common The act of a testator in writing the word law in prosecutions for obscene libel. Swear- "obsolete” on the margin of his will, without ingen v. United States, 16 Sup. Ct. 562, 563, signing it, or having any person sign it for 161 O. S. 446, 40 L. Ed. 765; United States him, in the manner prescribed by law, does V. Males (U. S.) 51 Fed. 41, 42.

not constitute a revocation of the will, un

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