WHEREBY AND BY FORCE OF THE STATUTE - The Law Mind Legal Dictionary

WHEREBY AND BY FORCE OF THE STATUTEAuthored

The Law Mind • 882 words

Definition

"Whereby and by force of the statute" is a formal pleading phrase used in common law declarations to signal that the cause of action arises directly from a statutory right or obligation rather than from the common law. The phrase performs a precise technical function: it connects the facts alleged in the declaration to the specific statute under which the plaintiff claims, and it signals that the plaintiff's right to sue, and the defendant's corresponding liability, derive from legislative rather than judge-made law. In older practice, omitting or misstating this phrase in a statutory action could prove fatal to the pleading, because the form of the declaration had to track the source of the right being asserted.

The phrase typically appeared near the conclusion of the charging portion of a declaration, after the plaintiff had alleged the facts constituting the breach or wrong, in a construction such as: "whereby, and by force of the statute in such case made and provided, an action hath accrued to the plaintiff." The "whereby" clause tied the legal consequence to the factual predicate; the "by force of the statute" clause identified the source of that legal consequence as statutory.

Common Confusion

This phrase is closely associated with the companion formula "in such case made and provided," which appeared in the same structural position in statutory declarations and served a similar function. The two phrases are sometimes treated as interchangeable in older treatises, but they are not identical. "In such case made and provided" identifies the existence and applicability of a statute to the case at hand; "whereby and by force of the statute" asserts that the plaintiff's right of action flows from that statute. Together they formed a standard pleading couplet. Researchers encountering one phrase in a declaration should expect to find the other nearby.

Why It Matters in Research

This phrase is a marker of statutory pleading in common law form. Its presence in a declaration tells the researcher three things: (1) the action is founded on statute, not common law; (2) the case was pleaded under the old system of common law forms, likely before the mid-nineteenth century procedural reforms (the Field Code in the United States, the Common Law Procedure Acts in England); and (3) the pleader was navigating the technical requirement that a plaintiff suing under a statute had to plead the statute's applicability with precision or risk a demurrer.

For corpus researchers, this phrase functions as a reliable period indicator. Its appearance in case law or pleading forms signals pre-code practice. After procedural reform in most American jurisdictions in the second half of the nineteenth century, and in England after 1852 and more fully after 1875, the rigid formulaic structure of common law declarations gave way to notice pleading, and phrases like this were abandoned as unnecessary technical ornament.

Researchers working with early American reports, English King's Bench and Common Pleas decisions, and colonial or early republic American pleading manuals will encounter this phrase with regularity. It is almost entirely absent from post-code materials, making it a useful chronological filter when searching a mixed corpus.

A secondary research trap: because the phrase was formulaic, its presence does not necessarily mean the pleader identified the statute correctly or with particularity. Courts sometimes accepted the formula while requiring the plaintiff to specify the statute elsewhere in the declaration. The formula was a signal of intent, not a substitute for substance.

Historical Dictionary Support

Rapalje and Lawrence do not carry a standalone entry for "whereby and by force of the statute." The closest entries in their dictionary cluster around related formulaic phrases used in declarations: "in such case made and provided," "wheresoever," "wheresoever and whatsoever," and "whereupon." This pattern is itself instructive. Rapalje and Lawrence treat these phrases as a family of pleading formulas that performed connective and attributive functions in formal declarations, each anchoring a legal consequence to a factual or legal predicate.

The absence of a dedicated entry for "whereby and by force of the statute" in Rapalje and Lawrence likely reflects the phrase's status as a known formula rather than a contested or ambiguous term requiring definition. Historical pleading manuals — Chitty's Pleading being the central authority — treated such phrases as standard components of well-drawn declarations, not as terms requiring explanation. The historical legal dictionaries generally followed the same assumption: practitioners were expected to know these formulas from practice and form books.

What the historical dictionaries collectively miss is any systematic treatment of the phrase's decline. The story of how procedural reform rendered these formulas obsolete is told more fully in treatises on code pleading than in the dictionaries.

Jurisdictional Note

The phrase belongs to the common law pleading tradition shared by England and the American states that adopted English common law forms. American jurisdictions abolished formal common law pleading at different times, ranging from the 1840s onward, meaning that the phrase persisted in some state courts well after it had been abandoned in others. Researchers should not assume uniform obsolescence across jurisdictions at any single date.

WHEREBY AND BY FORCE OF THE STATUTEsubentry

Rapalje & Lawrence • 1883

IN SUCH CASE MADE AND PROVIDED, (in a declaration). 3 Barn. & C. 186; 5 Dowl. & Rv. 13. WHERESOEVER, (in an insurance policy). Mau. & Sel. 418. WHERESOEVER AND WHATSOEVER, (in will. 3 East 516, 523. WHEREUPON, (equivalent to "after which," "upon which"). 1 Wyom. T. 419. a WHIG.-Sour milk. The name was applied in Scotland, A. D. 1648, to those violent covenanters who opposed the Duke of Hamilton's invasion of England in order to restore Charles I. The appellation of Whig and Tory to political factions was first heard of in A. D. 1679, and though as senseless as any cant terms that could be devised, they became instantly as familiar in use as they have since continued. 2 Hallam Const. Hist. c. xii. Whig and Tory differed mainly in this, that to a Tory the constitution, inasmuch as it was the constitution, was an ultimate point, beyond which he never looked, and from which he thought it altogether impossible to swerve; whereas a Whig deemed all forms of government subordinate to the public good, and, therefore, liable to change when they should cease to promote their object. Within those bounds, which he, as well as his antagonist, meant not to transgress, and rejecting all unnecessary innovation, the Whig had a natural tendency to political improvement; the Tory an aversion to it. The one loved to descant on liberty and the rights of mankind; the other on the mischief of sedition and the rights of kings. Though both admitted a common principle-the maintenance of the constitution-yet, this made the privileges of the subject, that of the crown's prerogative, his peculiar care. Hence, it seemed likely, that through passion and circumstances, the Tory might aid in establishing despotism, or the Whig in subverting monarchy. The former was generally hostile to the liberty of the press and the freedom of inquiry, especially in religion; the latter, their friend. The principle of the one, in short, was amelioration; of the other, conservation. The cardinal principle of Toryism was, that the king ought to exercise all his lawful prerogatives without the interference, or unsolicited advice, even of parliament, much less of the people. "And though," remarks Hallam (3 Const. Hist. c. 16), "I cannot reckon these old appellations by any means characteristic of our political factions in the nineteenth century, the names Whig and Tory are often well applied to individuals."- Wharton. WHILST, (in a lease). 7 East 116. WHIPPING, in England, may be inflicted as a punishment for offenses under several statutes, especially under the Criminal Law Consolidation Acts of 1861 and Stat. 26 and 27 Vict. c. 44. (Steph. Cr. Dig. 6; 1 Russ. Cr. & M. 80, 946.) It is also a lawful punishment in a few of the States, especially for wife beating. See LARCENY; MISDEMEANOR, § 3. WHISTLER, (spoken of a horse). Oliph. Hors. 107.

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