NATURE OF THE OBLIGATION. The question whether a judgment is a contract is an old one very much discussed, and in some cases it was held to be such, chiefly upon the au thority of Blackstone, who rested his opinion as to the propriety of this classification upon the doctrine of the soda] compact. The rela tions of a judgment to the idea of a contract or a quasi-contract have received much atten tion, in connection with the more careful in vestigation and accurate understanding of that class of obligations 'known as Dlasi-con tracts. Blackstone said, "Upon showing the judgment, once obtained, still in full force and yet unsatisfied, the law immediately im plies that, by the original contract of society, the defendant hath contracted a debt, and is bound to pay it ;" 3 Bla. Com. 160. Of this expression it has been said, "This i§ certainly a very remarkable statement, and involves large assumptions in regard to 'an original contract of society' and its supposed binding force upon a judgment debtor of the nineteenth century ;" Howe, Stud. Civ. L. 188. This early theory of an "original con tract of society" has been long since aban-, doped, and after the time of Blackstone's Commentaries Lord Mansfield, in a carefully considered case, said, "A judgment is no con tract, nor can it be considered in the light of a contract, as judicium redditur in invitum;" 8 Burr. 1545. The same view of the question was taken by the United States supreme court, which held that a judgment was not a "contract within the meaning of the constitu tional prohibition against impairing the ob ligation of a contract ;" Chase v. Curtis, 113 , U. S. 452, 5 Sup. Ct. 554, 28 L. Ed. 1038. That court has, in two other important cases, dis cussed the question of the nature of a judg ment and the obligation which is created by it, and in both cases it strongly dissents from the view of Blackstone and the earlier text writers. In Lewis v. Shreveport, 108 U. S. 285, 2 Sup. Ct. 634, 27 L. Ed. 728, the court said : "A judgment for damages, estimated in money, is sometimes called, by text-writ ers, a specialty or contract of record, be cause it establishes a legal obligation to pay the amount recovered, and, by a fiction of law, a promise to pay is implied where such legal obligation exists. It is on this prin ciple that an action em contractu will lie upon a judgment. But this fiction cannot convert a transaction, wanting the assent of the parties, into one which necessarily implies it. Judgments for torts are usually the result of violent contests, and, as ob served by the court below, are imposed on the losing party, by a higher authority, against his will and protest. The prohibition of the federal constitution was intended to secure the observance ..of good faith, in the stipulation of parties, against state action. Where a transaction is not based upon any assent of parties, it cannot be said that any faith is pledged with respect to it, and no case arises for the operation of the prohibi tion." In this case it was held that the con version of a statutory right to demand com pensation for damages caused by a mob into a judgment does not make it a contract with in the constitutional prohibition against im pairing the obligation of a contract. In the more recent case of Hilton v. Guyot, 159 U. S. 113, 16 Sup. Ct. 139, 40 L. Ed. 95, in refer ring to the doctrine of Blackstone, with ref erence to a foreign judgment, the court held that the idea that such judgment imposed or created an obligation or duty was a rem nant of an ancient fiction, and "while the theory in question would serve to explain rules of pleading which originated while the fiction was believed in, it is hardly a suffi cient guide at the present day in dealing with questions of international law; and it might be safer to adopt the maxim applied to for eign judgments by Chief Justice Weston, speaking for the supreme judicial court of Maine, judicium redditur in invitum, or as given by Lord Coke, in prcesumptione 'Ws judicium redditur in invitum; Jordan v. Rob
inson, 15 Me. 167 ; Co. Lit. 248 b." In New York it is held that a judgment is in no sense a contract or agreement ; Wyman v. Mitchell, 1 Cow. (N. Y.) 316; even a judgment founded upon a contract ; McCoun v. R. Co., 50 N. Y. 176; and the same doctrine is asserted with great vigor in a later case ; O'Brien v. Young, 95 id. 428 ; this is also the prevailing doc trine in other states ; Larrabee v. Baldwin, 35 Cal. 155; Masterson v. Gibson, 56 Ala. 56 ; McDonald v. Dickson, 87 N. C. 404 ; Tyler's Ex'rs v. Winslow, 15 Ohio St. 364 ; Sprott v. Reid, 3 G. Greene (Ia.) 489, 56 Am. Dec. 549 ; Rae v. Hulbert, 17 Ill. 572 ; some cases are contra; Morse v. Toppan, 3 Gray (Mass.) 411; Sawyer v. Vilas, 19 Vt. 43 ; Taylor v. Root, 43 N. Y. 335. The last case alone was re lied on as the authority for the proposition that a judgment is a contract by Harlan, J., dissenting, in Louisiana v. Mayor, supra, but the case so relied upon is in a collection omit ted from the regular reports and is in direct contradiction to cases cited supra, in which the opposing doctrine is emphatically stated by the same court, one decided four and the other sixteen years later. See also Burnes v. Simpson, 9 Kan. 658. The later text books concur in supporting the statement already made as to the weight of authority. In one a judgment is said to be not under any cir cumstances a contract (1 Black, Judgt. § 10), and in another it is said that though a judgment is not a contract, it may be treated in some cases as a contract or as included in that term in certain statutes ; 1 Freem. Judgt. § 4. Cases in which the contrary has been held will usually be found within this classification.
Leake (Contracts, 1911 Ed. 105) classifies a judgment as a contract of record.
The civil law conception of the judgment is said to be correctly represented by the Louisiana case of Gustine v. Bank, 10 Rob. La. 412, in which it was held that "a judg ment does not create, add to, nor detract from, the indebtedness of a party; it only declares it to exist, fixes its amount, and secures to the suitor the means of enforcing payment, and it is therefore necessary to look to the obligation upon which the judgment is based and ascertain whether it has arisen from contract or quasi-contract, from a de lict or quasi-delict, or merely from the op eration of law; the obligation is simply en forced and increased or diminished by the decree of the court. "It is declared to exist ; it is interpreted ; it is applied ; it is put in the way of enforcement by the judicial pow er of the state ;" Howe, Stud. Civ. L. 190.
In an interesting criticism upon the ter minology adopted by Prof. Keener, in his work on quasi-contracts, a writer in the Harvard Law Review objects very seriously to the use of the term quasi-contract as an expression of the obligation of a judgment, which he says is "founded upon the mandate of the court, and depends for its validity up on the right of a court to adjudicate between contending parties ;" 10 Harv. L. Rev. 213.