Definition
"Whereas the said writing obligatory" is a formal recital phrase used in common law pleading, appearing principally in declarations on penal bonds. A writing obligatory is a bond under seal — a written instrument by which one party binds himself (the obligor) to pay a sum certain to another (the obligee), typically with a penalty clause doubling the obligation if the condition of the bond is breached. The recital phrase introduces the bond itself into the body of the declaration, identifying it as the instrument on which the plaintiff's cause of action is founded. In practice, the full pleading sequence would recite the bond, state its condition, allege breach of that condition, and then aver that the penalty sum "became forfeited" — the concluding averment that triggered the plaintiff's right to recover.
The phrase is not a term of art standing alone; it functions as the opening clause of a structured pleading formula, and its legal significance lies entirely in that procedural context.
Common Confusion
"Whereas the said writing obligatory" is sometimes loosely treated as synonymous with the bond instrument itself. The distinction matters: the writing obligatory is the underlying document; the recital phrase is the pleading mechanism by which that document is introduced into a declaration. A researcher encountering the phrase in historical pleadings should read it as a signal that a formal bond action follows — not as a description of the bond's terms. Separately, writing obligatory should not be confused with a simple promissory note or bill of exchange. The writing obligatory is a sealed instrument; the note and bill are not, and the procedural and substantive rules governing each differ substantially in the common law tradition.
Why It Matters in Research
This phrase is a navigational marker in historical pleading records. When it appears in a declaration, it reliably signals a penal bond action — one of the most common forms of debt litigation in English and early American courts from the medieval period through the nineteenth century. Researchers working in colonial, early republic, or antebellum court records will encounter this formula with high frequency.
The critical downstream averment is the "became forfeited" clause. Rapalje & Lawrence's entry for this phrase cross-references a Virginia case (4 Hen. & M. 280), signaling that even the forfeiture averment generated litigation over its sufficiency — meaning courts scrutinized the precision of these pleading formulas. A declaration that recited the bond but failed to aver forfeiture with adequate specificity could be fatally defective. Researchers examining failed bond actions in historical records should look not only at whether the bond was proven but whether the pleading formula was complete.
Because common law pleading required strict adherence to form, variant phrasings of this recital in different jurisdictions or time periods may reflect local pleading practice, the influence of particular form books, or procedural reform. The shift away from this language tracks the broader nineteenth-century move toward code pleading — first under the New York Field Code of 1848 and then across reformed jurisdictions — which abolished the requirement of formal recitals and replaced the declaration with a plain statement of facts. After code pleading took hold, "whereas the said writing obligatory" effectively disappeared from practice. Its presence in a document is therefore also a rough terminus ante quem for the procedural era in which that document was drafted.
Corpus researchers should also note the connection between writing obligatory actions and the writ of debt. The declaration form using this phrase typically sounds in debt on a specialty, not assumpsit, which has implications for the applicable limitations period, the available defenses, and the measure of recovery.
Historical Dictionary Support
Rapalje & Lawrence do not provide a substantive definition of this phrase as an independent term. Their entry under the closely related heading "BECAME FORFEITED, (in a declaration)" — citing 4 Hen. & M. (Va.) 280 — treats the forfeiture averment as the legally operative component of the bond declaration formula. This confirms that historical legal dictionaries approached the writing obligatory recital instrumentally: the phrase mattered because of what it introduced and what had to follow it. The dictionary literature does not develop the recital itself as a term of art, which reflects its status as pleading boilerplate rather than a substantive legal concept.
Historical form books, rather than dictionaries, are the primary sources for the full declaration formula. Researchers needing the complete pleading structure should consult period precedent books such as Chitty's Precedents in Pleading or American equivalents circulating in the relevant jurisdiction and era.
Jurisdictional Note
The phrase and its associated pleading formula were common across English common law jurisdictions in the United States, but local practice varied in the precise recitals required. Virginia practice, as suggested by the Rapalje & Lawrence citation, generated its own case law on sufficiency of the forfeiture averment. Researchers should be attentive to whether a given jurisdiction had adopted standardized form books or whether local precedent governed pleading requirements.