8ECT.  L]  state  of  LOUISIANA  V.  NEW  ORLEANS.  25

in  pecuniary  estimation,  has  been  ascertained  and  established  by  the  judg*
ments  rendered.  The  obligation  to  make  indemnity  created  by  the  statiite
has  no  more  element  of  contract  in  it  because  merged  in  the  judgments
than  it  had  previously.  The  term  "  contract "  is  used  in  the  Constitution
in  its  ordinary  sense,  as  signifying  the  agreement  of  two  or  more  minds,  for
considerations  proceeding  from  one  to  the  other,  to  do,  or  not  to  do,  certain
acts.     Mutual  assent  to  its  terms  is  of  its  very  essence.
A  judgment  for  damages,  estimated  in  money,  is  sometimes  called  by
text  writers  a  specialty  or  contract  of  record,  because  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  principle
that  an  action  ex  contractu  will  lie  upon  a  judgment.^  But  this  fiction
cannot  convert  a  transaction  wanting  the  assent  of  parties  into  one  which
necessarily  implies  it.  Judgments  for  torts  are  usually  the  result  of  vio-
lent contests,  and,  as  observed  by  the  court  below,  are  imposed  upon  tlie
losing  party  by  a  higher  authority  against  his  will  and  protest  The
prohibition  of  the  federal  Coustitution  was  intended  to  secure  the  observ-
ance of  good  faith  in  the  stipulation  of  parties  against  any  State  action.
