The various liabilities for debts of the bank created by statute against bank stockholders, whatever the nature of them may be, whether primary or secondary, whether joint or several, have one feature in common, to wit: they are all contractual. Ordinarily such a contractual relation would be one quasi-contractual in its nature;l and as pointed out by the

10 Smith v. Londoner, 5 Cal. 365, citing two Illinois cases. See also Stephens v. Fox, 83 N. Y. 313, and cases cited.

11 Patterson v. Lynde, 106 U. S. 519, citing an Oregon case. The court fails to see that the statute creates a guasi-contract where before only a remedy in equity existed, and therefore gives a remedy at law. The cases in note 10, supra, are therefore correct, unless the bank was insolvent, when the statute in some states is held to require equal distribution of the assets.

1 Wood v. Dummer, 3 Mason, 308.

2 Wood v. Dummer, supra.

3 Fleischer v. Rentchler, 17 Bradw. 402.

4 Godfrey v. Terry, 97 U. S. 171; Baker v. Atlas Bank, 9 Mete 182; Long v. Bank of Yanceyville, 90 N. C. 405; Amer v. Armstrong, 6 Pa. Co. Ct R. 392. These cases, while not in point as to the facts, are in point as to the principle.

1 This distinction between conobligation may be enforced in another state, because it is not penal in its nature.5 It survives against the personal representative of a deceased stockholder.6 It covers all manner of debts and liabilities that fall within the terms of the statute.7 The word " debts," in these statutes, seems to mean every kind of a contractual claim; but a claim for a tort does not become a debt because it is reduced to a judgment, which is ordinarily called a debt of record.8 These decisions are erroneous, because founded on a misconception of a quasi-contract. There are some liabilities against stockholders which are penal in their nature and not enforced in other states.9 The remedy of special nature provided will not be applied in another state.10

Supreme Court of the United States, a quasi-contract is not a contract that is protected by the constitutional prohibition against the states of impairing the obligation of a contract.2 The distinction becomes of importance in case it is desired to issue a writ of attachment. Many statutes permit a writ of attachment to be issued upon a cause of action arising out of a contract, express or implied. Such a contract to be implied must be one implied as an actual agreement of the parties, not one implied contrary to the intention of the parties, or one arising from a statute as a quasi-contract. Therefore if this statutory liability is a quasi-contract in those jurisdictions just spoken of, the writ of attachment would not lie upon it, nor would it be protected against a law taking the liability away as to future contracts. But it has been erroneously decided by the highest authority that this liability of stockholders is a genuine contract, because, it is said, being a provision of law, it is as if written into the articles of agreement of the corporation as a part thereof.3 It has been held that it cannot be repealed by a state statute,4 because the obligation of a contract would be impaired. This decision was made through a total misconception. The tract and quasi-contract is one that courts have much confused, but it is important. See Keener, Quasi-Contract, ch. L Prof. Wigmore, in his classification, 25 Am. Law Rev. 695, ignores customary and statutory duties as part of the law of quasi-contract. It was even held expressly by a court of high authority that this liability was not one of contract, but was quasi-contract-ual. First Nat Bank v. Hawkins, 79 Fed. R. 51 (C. C. A.). See Amer v. Armstrong, 6 Pa. Co. Ct. R. 392.

2 Louisiana v. New Orleans, 109 U. S. 285.

3 Hawthorne v. Calef, 2 Wall. 10. This case was argued by eminent counsel, but the idea of quasi-contract was not even suggested. See also Corning v. McCullough, 1 Comst. 47. But the court in First Nat. Bank v. Hawkins, 79 Fed. R. 51, held it a gwasi-contract, in seeming ignorance of this decision. The holding in the case just cited was, however, perfectly correct, but has been reversed in the Supreme Court. First Nat. Bank v. Hawkins, 174 U. S. 364.

4 Hawthorne v. Calef, supra. While the decision may be correct, the reasons given for it are perfectly erroneous. The statutory liability is a quasi-contract, but when the obligation has once arisen it is property, and a statute cannot abolish it, because the act would be confiscation. See Sec. 128, note 10, post.