or all of the damages sought to be recovered. Bieri v. Fonger, 139 Wis. 150, 120 N. W. 862. From the present complaint it clearly appears that defendant was under a contractual duty to the plaintiff none the less because such duty had been declared and defined by the judgment of a court. That contract required defendant to convey to the plaintiff certain land upon payment of certain money within a defined time. It imposed upon the plaintiff a duty to the defendant to make such payment or at least tender to him personally, for the conveyance was to be cotemporaneous, and such cotemporaneousness was doubtless necessary to the raising of the money to be paid. From a contract imposing such duty on the plaintiff there resulted by necessary implication the agreement on defendant's part to do no act which would render such payment or tender impossible. This upon the general principle that he who by mutual contract confers on another a right or imposes a duty impliedly agrees not to defeat that right or make impossible the performance of that duty by any affirmative acts of his own. Manning v. Galland-Hennings, etc., Co. 141 Wis. 199, 124 N. W. 291; Eliot National Bank v. Beal, 141 Mass. 569, 6 N. E. 742. By this complaint it is alleged that the acts of defendant were in fact done for the express purpose of preventing the plaintiff from tendering or paying the money and acquiring his rights; that they were effective to that end; and that damages of various sorts resulted to him. These facts of themselves are sufficient to show a breach of contract and resulting damages, unless, indeed, it appears by other allegations of the complaint either that damages did not necessarily result from defendant's breach of his contract duty, or that they were not such as were within reasonable contemplation of the parties at the time of making the contract. Hadley v. Baxendale, 9 Exch. 341; Guetzkow v. Andrews, 92 Wis. 219, 66 N. W. 119, 52 L. R. A. 209, 53 Am. St. Rep. 909; Lippert v. Saginaw Milling Co., 108 Wis. 512, 84 N. W. 831.

*

*

TIMLIN, J. (dissenting).—* The pleader intended to state a cause of action in tort, and he has stoutly contended before this court that the complaint states such cause of action. But the majority of this court holds that the complaint shows a contract obligation resting upon Dickson and a breach thereof by the latter. I concur in the view that the complaint states no cause of action in tort, for it shows no breach by Dickson of any duty imposed upon him by law. I think the original contract stipulations which were the subject of the foreclosure suit are merged in the decree there given. No doubt a judgment is for certain purposes considered a contract. But this is a legal fiction referable to certain remedies thereon or necessary to meet the requirements of statutes or constitutions which might otherwise include the contract until judgment was entered thereon and fail to cover it thereafter. Bishop on Contracts, §§ 141, 566; 1 Black on Judgments, §§ 7-11; 17 A. & E. Ency. of Law (2d ed.) pp. 763, 764, and cases cited.

If this decree creates, expressly or by implication, a contract obligation of the kind suggested resting upon Dickson, then every decree for specific performance or similar relief creates such contract obligation, and may be the basis of an action at law. On the other hand, if we consider the original contract stipulations to be in force notwithstanding the decree, or if we consider that the decree continues the stipulations in force unmodified, there is no covenant, express or implied, in the original contract that Dickson shall be at any particular place or hold himself in readiness to receive this money. It is the duty of the debtor where no place of payment is fixed to seek out, find, and pay to his creditor. If a mortgagee leaves the state or changes his place of residence, and his whereabouts are unknown to the mortgagor for 10 or 15 years, is he liable at law upon contract for damages if a wrongful or malicious intent be found? In the case at bar I think the only effect of this absence of Dickson, whatever his motive, would be to entitle the defendant in the strict foreclosure judgment upon application to the court to have the time of payment extended or to pay the money into court. The weakness of the decision I think is that it finds a contract obligation resting upon the defendant where none exists, either expressly or by implication, and finds a breach thereof consisting of lawful and usual acts not by any obligation prohibited.

KERWIN, J., concurs.

B. RECOVERY UPON A RECOGNIZANCE.

GREEN & GREEN v. OVINGTON & BLEECKER.

16 JOHNS. 55-1819.

SPENCER, J.-* The plaintiff declares in debt, on a record of recognizance of bail entered into by the defendants, in the Mayor's court, as of April term of that court, in 1810; and refers, in his declaration, to the record of recognizance remaining in that court, in the usual form of declaring on records of judgment or recognizance, prout patet per recordum.

The defendant's plea impeaches the record, in stating that the bail-piece, which is the warrant for the recognizance record, was not acknowledged by the defendants until after the judgment in the original cause, to wit, the 24th of January, 1811; and the plea conIcludes with the allegation, that the bail-piece is void. As the plea is clearly bad, it is unnecessary to take any particular notice of the replication. Although the recognizance of bail is taken before a single judge of a court, it is, in legal contemplation, done in court; and it is so entered. The bail-piece is a mere memorandum of the recognizance, authorizing the making up the record of recognizance

of bail, and when that is filed it becomes a record of the court and the party in whose favor it is acknowledged, may, on its being forfeited, bring either a scire facias, or debt, at his election. The validity of records, among which are recognizances of bail, cannot, in pleading, be impeached or affected by any supposed defect or illegality in the transaction on which they were founded; nor can there be any allegation against the validity of a record. (1 Chitty Pl. 354, and the cases there cited.) It is to be observed that all the pleas by bail, of which we have any precedent, state matters consistent with the record. If the record is untruly stated, the defendants can avail themselves of such defect, only by pleading nul tiel record. Judgment for the plaintiff.1

In State v. McGuire, 42 Minn. 27 (1889), the court says: "A recognizance differs from a bond in this: that while the latter, which is attested by the signature and seal of the obligor, creates a fresh or new obligation, the former is an acknowledgment on record of an already existing debt, with condition to be void on performance of the thing stipulated, and attested by the record of the court alone, and not by the obligor's signature and seal. It is undoubtedly essential that it be a matter of record, and that it contain and express in the body of it the material parts of the obligation and condition; and, if deficient in this respect, the record cannot be aided by parol. In an action of debt on a recognizance at common law, the utmost strictness that was ever required was that the declaration should state it with certainty, pursuing the description in the entry of recognizance, and should allege in what court, and at whose suit, and for what sum the defendants acknowledged themselves obligated; also, that it should be averred that it is a record, and the breach stated according to the terms of the recognizance. We cannot see wherein the complaint in this action fails to comply with a single one of these requirements."

In Bodine v. Commonwealth, 24 Pa. St. 69 (1854), the court says: "The 2d section of the Act of 2d December, 1783, and the 2d section of the Act of 30th March, 1821 (Brightly's Purdon 375), confer jurisdiction upon the common pleas over forfeited recognizances, but do not prescribe the form of action to be brought. Debt has generally been the action adopted, but in some parts of the state we are told the scire facias has uniformly been employed. We are of opinion that either action will lie. Of the two actions perhaps the scire facias is most appropriate, for the recognizance is matter of record, is in the nature of a judgment, and the process upon it is for the purpose of carrying it into execution, and is rather judicial than original. It is no further to be reckoned an original suit than that the defendant has a right to plead to it. It is founded upon the recognizance, and, partaking of its nature, must be considered as flowing from it; and when final judgment shall be given the whole is to be taken as one record: Cobbet's Case, 2 Yeates 362. Chitty, in his excellent work on Pleading, Vol. I, p. 100, citing Tidd's Practice, expresses preference for the scire facias in these words: "Debt is sometimes brought upon a recognizance of bail, but the remedy thereon is more frequently by scire facias, because in the latter the proceeding is more expeditious, and the bail have less opportunity of discharging themselves by rendering their principal."

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In Smith v. Collins, 42 Kan. 259 (1889), the court says (p. 260): "Strictly speaking, a recognizance is a debt confessed to the state which may be avoided upon the conditions stated. At common law the forfeiture of the recognizance was equivalent to a judgment. Another theory of the common law was that the cognizors by an acknowledgment of the cognizance had already submitted themselves to the jurisdiction of the court;" and from these theories grew a rule that "recognizances must be prosecuted in the court in which they were taken or acknowledged, or to which they were returned."

See also, as to recovery upon a record, Cockram v. Welby, 2 Show. 79, set out herein at p. 16, note; and as to the history, nature and effect of a recognizance, People v. Kane, 4 Denio (N. Y.) 530 (1847).

PART II.

RECOVERY UPON A STATUTORY, OR OFFICIAL, OR

CUSTOMARY DUTY.

A. STATUTORY DUTY.

STORY, J., IN BULLARD v. BELL.

I MASON 243, 298.-1817.

THIS is a liability created, not merely by the act of the parties, but by the express terms of a statute. The act of incorporation provides "that if said corporation shall, at any time hereafter, divide their stock, previous to the payment of all their bills, or shall refuse' or neglect to pay any of their bills when presented for payment in the usual manner, the original stockholders, their successors and assigns, and the members of such corporation shall, in their private capacities, be jointly and severally liable to the holder of any bill or bills issued by the said corporation for the payment thereof," etc., etc. I agree at once to the position, that the bills of the bank are to be considered originally as the debts of the corporation and not of the corporators; and, except from some special provision by statute, the latter cannot be made answerable for the acts or debts of the former. They are altogether in law distinct persons and capable of contracting with each other. But the corporators are not strangers to the corporation. On the contrary, the law contemplates a privity between them, and upon that privity has created an obligation on the corporators, under certain circumstances, to pay the debt of the corporation. Nothing can be better settled than that an action of debt lies for a duty, created by the common law, or by custom. A fortiori it must lie, where the duty is created by statute. Mr. Justice Blackstone says, "that every person is bound, and hath virtually agreed to pay such particular sums of money, as 'are charged on him by the sentence, or assessed by the interpretation of the law. Whatever, therefore, the law orders any one to pay, that becomes instantly a debt, which he hath beforehand contracted to discharge." Without placing any reliance upon this refined notion of contracts, it cannot be doubted that the learned judge has expressed the true doctrine of the law. Whatever is enjoined by a statute to be done, creates a duty on the party, which he is bound to perform. The

II

whole theory and practice of political and civil obligations rest upon this principle. When therefore a statute declares, that, under certain circumstances, a stockholder in a bank shall pay the debt due from the bank, and those circumstances occur, it creates a direct and immediate obligation to pay it. The consideration may be collateral or not, but it is not a subject-matter of inquiry, and to deny that it is a duty on the stockholder to pay the money, is to deny the authority of the statute itself, for a duty is nothing more than a civil obligation to perform that which the law enjoins. Here then the law has declared that the stockholders shall be liable to pay a specific sum, and it imposes on them a duty so to do. How then can the court say that debt does not lie, since there is a duty on the defendant to pay the plaintiff a determinate sum of money? There is no room, under this view of the case, for entertaining any question as to collateral undertakings. The law has created a direct liability, a liability as direct and cogent, as though the party had bound himself under seal to pay the amount in which case debt would undoubtedly lie. The law esteems this an obligation created by the highest kind of specialty. Indeed, if debt would not lie in this case, it is inconceivable how assumpsit could. There is no pretense of any express promise, and if a promise is to be implied, it must be because there exists a legal liability, independent of any promise sufficient to sustain one. Now the very notion of a collateral undertaking is, that there exists no legal liability, independent of the promise to create a duty. And if there exists a duty sufficient to raise a promise, then it is sufficient to sustain an action of debt. Upon the most mature reflection I am of opinion that an action of debt well lies in this case.1

'In Elliott v. Gibson, 10 B. Mon. (Ky.) 438 (1850), where assumpsit was brought upon the liability of the owner of an escaped slave to pay a statutory reward, if he received the slave back, the court said (p. 439): "A statute is in some respects considered a specialty, and debt is frequently, perhaps generally, the remedy prescribed for the recovery of any money due to the plaintiff under its provisions under contract or quasi-contract; but when the statute does not prescribe the remedy, assumpsit may be supported, the plaintiff not being by it restricted to any particular remedy: ( Chitty's Pleadings, 120; Buller, N. P., 129)." See also, (assumpsit) Central Bridge Trans. Co. v. Abbott, 4 Cush. (Mass.) 473 (1849), and Augner v. Mayor, 14 App. D. (N. Y.) 461 (1897), where it is said (p. 466), speaking of the action under the reformed procedure: "This action is upon what has been aptly termed a quasicontract. It is not upon a genuine contract, that is, an agreement, in fact, between plaintiff and defendant, either express or implied. It is simply upon a statutory liability, which is sufficient to sustain an action analogous to what was formerly called assumpsit."

In Steamship Co. v. Joliffe, 2 Wall. (U. S.) 450 (1864), plaintiff brought an action to recover under a statute which allowed half-pilotage fees to a pilot whose services were tendered and declined. The statute was later repealed. The court said (p. 457): "The claim of the plaintiff below for half-pilotage fees resting upon a transaction regarded by the law as a quasi-contract, there is no just ground for the position that it fell with the repeal of the statute under which the transaction was had. When a right has arisen upon a contract, or a transaction in the nature of a contract authorized by statute, and