relation of debtor and creditor must exist. It could not be used in actions for wrongs or torts. In some of the states this scope of the proceeding has been enlarged so as to include in some states specified, and in others all, actions in tort. Actions at law are fundamentally and logically divided into two classes,-"actions ex contractu" and "actions ex delicto,"-though these express terms are not employed in the statute. Everybody knows what these terms mean, and, while the legislature seemed to prefer English words, we are inclined to think that they used this expression, "actions arising on contract," as the equivalent of "actions ex contractu," just as they substituted "claim and delivery" for "replevin." Now, while it may seem essentially contradictory to say that an action brought on something which is not a contract is an action ex contractu, or an "action arising on contract," still what we seek is to know what kind of an action the legislature meant when they referred in their attachment law to an "action arising on contract." It seems to us that the thought and purpose of this first paragraph of the attachment law was to declare in what general class of actions an attachment would lie. It was a declaration of the purpose and policy of the attachment law of this state as to what general class or kind of actions might be aided by attachment. By the statutes of some of the states, attachments were allowed in any action for the recovery of money. Sometimes both classes were expressly named, as in Georgia, where it was available "in all cases of money demands, whether arising ex contractu or ex delicto." In others the remedy was confined to actions "on contract, express or implied"; "actions on contract"; "actions arising on contracts," etc.,-all meaning, as we think, that general class of actions known in legal nomenclature as "actions ex contractu." Subsequent provisions are supplementary, and define particularly the further conditions that must exist to justify the issue of the attachment. The general condition announced in the beginning is that the action must be of that class known as "actions on contracts," as distinguished from "actions for torts." Actions on judgments form a very common class of actions, and have always been brought as ex contractu actions, and not as tort or ex delicto actions. O'Brien v. Young, 95 N. Y. 431; Louisiana v. Mayor, etc., of New Orleans, supra; Johnson v. Butler, 2 Iowa 535. This is not because judgments are essentially and absolutely contracts, but because the obligation imposed by them is more in the nature of a contract liability than a tort liability. It seems much the same in character as the liability of an infant to pay for necessaries. The judgment against him does not rest upon his contract liability, for he is not required to pay what he promised or agreed to pay, but simply what it is right for him to pay, and yet his liability is regarded and classed as contractual.

We are inclined to regard a judgment, not as a contract, but as a quasi-contract, which the legislature and the courts have treated as a contract in respect to the remedy by subsequent action upon it; and so, as before suggested, the question whether, under our

statute, an attachment may issue in an action on a judgment depends upon the sense in which the legislature used the expression, "action arising on contract." If used in an exact and literal sense, an action on a judgment would not, in our opinion, be included; but if used in a general and leading sense, to distinguish actions of one class from those of the other, then the expression must be presumed to have been used in view of the common understanding and practice that actions on judgments were actions on contract. I think the same meaning was intended here, as by the same words in section 4915, providing that a cause of action "arising on contract" may be pleaded as a counterclaim. I think there could be little doubt that an existing judgment might, under this provision, be pleaded as a counterclaim. This point was directly ruled in Taylor v. Root, *43 N. Y. 335, where it was held that, in an action on contract, a judgment in an action of slander could be set up as a counterclaim for the reason that, within the meaning of that provision, it was a cause of action arising on contract. In Wyman v. Mitchell, I Cow. 316, and McCoun v. Railroad Co., 50 N. Y. 176, and O'Brien v. Young, 95 N. Y. 428, all New York cases, it was distinctly said that a judgment was not a contract; and yet in Nazro v. Oil Co., 36 Hun 296, and again in Gutta-Percha & Rubber Manuf'g Co. v. Mayor, etc., 108 N. Y. 276, 15 N. E. 402, reversing 46 Hun 237, it was held that an action on a judgment was one on "a contract express or implied," within the meaning of the attachment law, and the right to attachment was in each case sustained. In the latter case the court said: "In a suit upon a binding judgment, whether foreign or domestic, the plaintiff must therefore be entitled to the same provisional remedies to which he would be entitled in an action upon contract express or implied." Upon the same line the supreme court of North Carolina said that, while judgments were not treated as contracts for all purposes, they were so treated for the purpose of distinguishing them from causes of action ex delicto, and that they were not included in a statute covering causes of action "not arising out of contract." See Moore v. Nowell, 94 N. C. 265. In Johnson v. Butler, 2 Iowa 535, an attachment was issued on an action on a judgment. Their attachment law prescribes a different procedure in an action "founded on contract" from that in an action "not founded on contract." The question was as to which class the action belonged. The court said: "The distinction is manifestly between actions ex contractu and ex delicto, and it was always so understood and so acted upon. The Code does not recognize the common-law technical names of action, nor, in this case, even the general classification of those upon contract and those of tort, in express and technical terms; still the sense cannot be mistaken." The Wisconsin supreme court in Childs v. Manufacturing Co., (Wis.) 32 N. W. 43, discussed the question whether an action on a judgment, as one arising on "contract expressed or implied," could be joined with an action for the breach of an express contract, and said: "When we consider the object of section 2647, we think

* * *

it very clear that the legislature intended to use the word 'contract' in said subdivision in its largest sense, and not in a restricted sense. The object of the section, as a whole, is to classify causes of action. with reference to their joinder in one and the same action.

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In this view of the subject, notwithstanding the fact that in other parts of the statute, and for other purposes, the legislature seems to have made a distinction between 'contracts' and 'judgments,' that fact furnishes no good reason for holding that in said section 2647 the word 'contract' was not intended to be used in its larger meaning, so as to cover a case of a judgment for the payment of money." Against this enlarged interpretation of the expression, "actions arising on contract," so as to include an action on a judgment, it is urged that the legislature of at least one of the states, Nebraska, did not so use or understand it, for they thought it necessary to expressly add "judgment or decree" to "debt or demand arising upon contract." There is certainly some force in this, but the argument is of the same character as it would be to urge that under our law an attachment would lie in an action for a breach of promise to marry, because in New York it was thought necessary to except such actions from those on "contract, expressed or implied;" and our legislature has not made such exception, thus indicating, as the argument would be, that they intended to allow attachments in such cases. We do not think the fact in either case, or the inference therefrom, is potent enough to control our conclusion as to the proper interpretation of our law. While the question is not entirely free from embarrassment, we conclude that an action on a judgment is an "action arising on contract," within the meaning of that expression as used in our attachment law, and that this is so whether the original cause of action which entered into the judgment was one on contract or tort. This view necessitates the conclusion that the court erred in discharging the attachment, on the ground that the action was not one arising on contract, and the order appealed from is reversed. All the judges concur.1

'MEANING OF "CONTRACT" AS USED IN STATUTES.-A judgment is not a contract within the meaning of the constitutional provision against legislation impairing the obligation of contracts, Louisiana v. New Orleans, 109 U. S. 285 (1883). The following New York cases serve to illustrate, by judicial determination, whether the word "Contract" as used in various statutes means true contract only, or includes quasi-contract as well: "Express or implied contract" in § 420, Code Civ. Pro. (taking judgment without application to the court), a statutory liability to refund is an implied contract, Augner v. Mayor, 14 App. D. 461 (1897). "Cause of action on contract" in § 501, subd. 2, of Code Civ. Pro. (counterclaim by such cause of action),-a judgment in a tort action is an implied contract, Taylor v. Root, 4 Keyes 335 (1868). "Contract express or implied" in § 635, subd. 1, of Code Civ. Pro. (granting warrant of attachment), a judgment is an implied contract, Gutta Percha Co. v. Mayor, 108 N. Y. 276 (1888), but a statutory liability to pay costs is not, Remington Paper Co. v. O'Dougherty, 96 N. Y. 666 (1884), affirming, without opinion, 32 Hun 255. Exception of "any contract or obligation made before the passage of the act" in ch. 538, Laws of 1879 (reducing legal rate of interest),—a judgment is not a contract, O'Brien v. Young, 95 N. Y. 428 (1884). “Judgment or

LOEHR v. DICKSON.

141 WIS. 332.-1910.

Appeal from order sustaining a general demurrer to plaintiff's complaint, which alleged that defendant is the owner of certain real estate in Waukesha county; that on February 23, 1906, a judgment was entered of strict foreclosure of a land contract which had previously been given by defendant to plaintiff; that such strict foreclosure was subject to the condition that plaintiff pay to defendant on or before August 23, 1906, certain sums of money aggregating on that date approximately $60,000; that plaintiff prior to August 23d, to wit, in the latter part of the month of July, made various attempts to pay said money to the defendant, repeatedly going to his house with the money and sending him letters which he is alleged to have received, notifying him of the wish to make payment, and that on August 23d a messenger or agent of the plaintiff found defendant and notified him of plaintiff's desire and readiness to make such payment, whereupon defendant appointed an hour on the following day at his attorney's office at which he would be present and would receive the money; that plaintiff attended at that time with the money, and defendant did not appear; and that he has been unable to physically tender the payment to him. The plaintiff alleges that the acts of defendant in evading such tender were willful and with the intention of preventing plaintiff from saving his rights under the land contract, and to impose upon him the forfeiture of such rights; further, that on February 24th plaintiff, in reliance upon said judgment, had granted to one Smith an option for the sale of the property involved for $70,000 on or before August 21, 1906, wherein time was of the essence of the contract, and failure by plaintiff to make conveyance on or before August 21st released said Smith; that on said August 21st plaintiff sold and by warranty deed conveyed said property to said Smith in pursuance of said option for $70,000, subject to the condition that, if plaintiff failed to secure proper releases and conveyances from the defendant or his assigns by August 30th, said deed should be void and plaintiff must repay said $70,000; that, by reason of defendant's willful evasion of plaintiff's tender, the latter was unable to comply and was obliged to refund, and to lose the profit of said sale, together with certain other opportunities for sale, whereby he suffered damage in the sum of $12,068.76, and certain other amounts, for which plaintiff demands judgment.

decree founded upon contract" in ch. 300, § 1 of Laws of 1831 (arrest in civil actions), a judgment founded upon a quasi-contractual liability is not a judgment founded upon contract. People ex rel. Dusenbury v. Speir, 77 N. Y. 144 (1879). And see also, Willard v. Doran & Wright Co., 48 Hun 402 (1888), where 8 1013 of the Code Civ. Pro. (providing for compulsory reference) is held applicable to actions on true contract only.

DODGE, J.-Plaintiff assures us in advance that his attempt is to state a cause of action in tort. Examining the complaint in that aspect then: It is at once obvious that none of the acts alleged against defendant is in and of itself prohibited by any law. At most, it is alleged that he did not stay at his home through several days during which plaintiff desired to make tender, or inferentially that he went somewhere else; also, that he refrained from going to his attorney's office on a certain day promised. Obviously all such acts. were entirely lawful in and of themselves. No law prohibited him from leaving home nor commanded his attendance at his attorney's office. If he owed any duty in those respects, it was one imposed by his own promise or contract, and not by law. The fact that inconvenience or actual pecuniary injury results to another from such lawful acts does not transform them into torts. It is but a case of damage without legal wrong-"Damnum absque injuria." Whalon v. Blackburn, 14 Wis. 432. But the complaint alleges that these acts, lawful in themselves, were done maliciously-that is, with the express purpose of causing plaintiff damage-and therefore liability. results. Very little aid is given by either counsel on this essential question whether a lawful act becomes a tort by reason of malice or intent to injure.

Upon this question there is a sharp conflict of authority throughout the courts of the country. The principle is asserted by perhaps the majority of those authorities "that malicious motives make a bad case worse, but they cannot make that wrong which in its own essence is lawful." 32 Ohio Law Journal, 215; Jenkins v. Fowler, 24 Pa. 308. A copious collection of authorities on both sides will be found in the note to Letts v. Kessler, 40 L. R. A. 177. However, that subject was presented to this court in Metzger v. Hochrein, 107 Wis. 267, 83 N. W. 308, 50 L. R. A. 305, 81 Am. St. Rep. 841, under the aspect of a "spite fence" impairing plaintiff's enjoyment of his residence property. The conflicting authorities were carefully considered, and from that conflict this court allied itself with those holding that mere malice or motive to injure could not impose liability for a lawful act. That case has been treated as final authority for that proposition in Sullivan v. Collins, 107 Wis. 291, 83 N. W. 310; Marshfield Land & Lumber Co. v. John Week Lumber Co., 108 Wis. 268, 274, 84 N. W. 434; Huber v. Merkel, 117 Wis. 355, 363, 94 N. W. 354, 62 L. R. A. 589, 98 Am. St. Rep. 933. We deem the rule of Metzger v. Hochrein now settled in Wisconsin and that malicious intent to injure cannot transpose a lawful act into a tort, and hence that the complaint fails to state a cause of action ex delicto.

The conclusion reached in response to plaintiff's own construction of his complaint is, however, not conclusive. A demurrer challenges the sufficiency of the complaint to state any cause of action, and must not be sustained in face of one which does by liberal construction state facts from which any liability results, although not for some