WRITINGS FOR PAYMENT

7543

WRITTEN CONSENT

United States v. Chase, 10 Sup. Ct. 756, 757, | necessary in a pleading is to allege the exe 135 U. S. 255, 34 L. Ed. 117. cution of the deed or writing obligatory, and it is not necessary to allege sealing or de

WRITINGS FOR PAYMENT OF MON- livery. Egan v. Horrigan, 51 Atl. 246, 248, 96 Me. 46.

EY.

"Writing obligatory" has not come into Wag. St. p. 917, § 9, prescribing a limicommon use in a sense different from its tation of 10 years for an action on any technical one. The expression is rarely used, "writing, whether sealed or unsealed, for the payment of money or property," embraced even by the profession, except in pleading, all kinds of written instruments, without and then always as signifying a writing unregard to their form or phraseology, which der seal. Watson v. Hoge, 15 Tenn. (7 Yerg.) 344, 351. implied a promise or an agreement to pay money, and did not mean merely such as had the requisites of promissory notes, or such as contained an express promise or agreement to pay. Shelton v. Wyman, 1 Mo. App. 130, 133 (citing Reyburn v. Casey, 29 Mo. 129).

In Denton v. Adams, 6 Vt. 40, the court held that the words "writing obligatory," in a declaration for a jail bond, imported that the instrument was signed and sealed, since it would not become a writing obligatory without signing and sealing. These words are of the same import as "deed in writing," which clearly imports both signing and sealing. Ide v. Passumpsic & C. R. R. Co., 32 Vt. 297, 298.

Doubts have arisen as to what writings ought to be interpreted to create obligations for the payment of money or property, within the meaning of Rev. St. 1899, § 4272, providing that no action shall be barred on a writing for the payment of money or property under 10 years. In Reyburn v. Casey, 29 WRITING THE RISK. Mo. 129, it was said that the broad and comprehensive language of the statute evidently embraces all kinds of written instruments, without regard to their form and phraseology, which imply a promise or agreement to pay money, and is not restricted to such as have the requisites of promissory notes, or to such as contain an express promise or agreement upon their face to pay. It is sufficient if the words import a promise or agreement, or that this can be inferred from the terms employed. Howe v. Mittelberg, 70 S. W. 396, 397, 96 Mo. App. 490.

A rule of court requiring an affidavit of defense in actions on bills, records, and other "writings for the payment of money" cannot be construed to include a sheriff's recognizance, for it is for the performance of a collateral condition. Commonwealth v. Hoffman, 74 Pa. (24 P. F. Smith) 105, 109.

WRITING OBLIGATORY.

The words "writing obligatory" are technical, and imply a written instrument under seal. Clark v. Phillips (U. S.) 5 Fed. Cas. 908; Stull v. Wilcox, 2 Ohio St. 569, 573.

"Writing obligatory" is practically synonymous with "bond," and implies and includes the ideas of signing and sealing. Denton v. Adams, 6 Vt. 40, 42.

A writing obligatory is a bond, or some written obligation under seal. It is a term that is never applied to simple contracts, though they may be in writing. Luna v. Mohr, 1 Pac. 860, 864, 3 N. M. (Johns.) 56.

The word "deed” or “writing obligatory" was said, in Jackson v. Perkins (N. Y.) 2 Wend. 308, 317, to imply the sealing and delivery of the deed, and therefore all that is

"Writing the risk," as used in a policy of fire insurance providing that it might be terminated at the request of the insured by repaying the company the customary short rates, together with the expenses of "writing the risk," is not synonymous with, and does not in in insurance parlance mean the same thing as, "writing the policy." State Ins Co. v. Horner, 23 Pac. 788, 14 Colo. 391.

WRITTEN BALLOTS.

Chief Justice Parker, in Henshaw v. Foster, 26 Mass. (9 Pick.) 312, declared that, if an enlarged sense of any particular form of expression should be necessary to accomplish so great an object as the convenient exercise of a fundamental right, such sense should be attributed to it, and in that view was lead to hold that the words "written votes" in the Massachusetts Constitution included both written and printed votes. Fritts v. Kuhl, 17 Atl. 102, 107, 51 N. J. Law (22 Vroom) 191.

"Written," as used in Const. art. 2, § 2, providing that elections for governor, senators, and representatives shall be by written ballots, means expressed by letters, and hence a printed ballot is within the provision. Opinion of Justices, 7 Me. (7 Greenl.) 492, 495. So, also, under the Constitution of Vermont. Temple v. Mead, 4 Vt. 535, 541.

WRITTEN CONSENT.

Where a statute chartering a waterpower company gave it a right to divert the water of a river on the "written consent" of those owning lands or water privileges, the "written consents" were substituted for, and were equivalent to, the deeds required by

common law in order to create incorporeal | exchange. Gale v. Myers (Del.) 4 Houst. 546, hereditaments. Raritan Water-Power Co. v. 547. The term includes a contract stating Veghte, 21 N. J. Eq. (6 C. E. Green) 463, that one person has bought goods from an469. other, describing the goods and giving the price and condition of the sale, though signed only by the purchaser. Ames v. Moir, 22 N. E. 535, 130 Ill. 582.

WRITTEN CONSTITUTION.

A written constitution is in every instance a limitation upon the powers of government in the hands of agents, though there never was a written republican constitution which delegated to functionaries all the latent powers which lie dormant in every nation, and are boundless in extent and incapable of definition. State v. Ah Chuey, 14 Nev. 79, 101, 33 Am. Rep. 530 (citing Cooley, Const. Lim. [3d Ed.] marg. p. 37).

A written constitution marks the only degree of restraint which, to promote stable government, the people put upon themselves. They resolve, in such an instrument, in substance: We will not do certain things, and we will do certain things; and generally in the same instrument any change in the course of government thus marked out is rendered difficult by the formalities and lapse of time which must attend an amendment of it. Commonwealth v. Reeder, 33 Atl. 67, 68, 171 Pa. 505, 33 L. R. A. 141.

WRITTEN CONTRACT.

A written contract is one which in all its terms is in writing. Bishop, Cont. § 163. Railway Passenger & Freight Conductors' Mut. Aid & Ben. Ass'n v. Loomis, 32 N. E. 424, 426, 142 Ill. 560 (Bishop, Cont. § 163); Ames v. Moir, 22 N. E. 535, 130 Ill. 582; Wood v. Williams, 40 Ill. App. 115, 117.

A contract in writing is none the less so because it expresses, and its operation depends upon, a contingency. When the contingency happens, the minds of the parties meet as to all the terms which the contract expresses, and to write them over again would be one of those useless acts which the law does not require. Insurance Law Bldg. Co. v. National Bank of Missouri, 5 Mo. App. 333, 336.

Whether parties have committed their entire contract to writing is a question for the determination of the court. In this determination the writing itself is the guide. If, on its face, it imports to be completethat is, if it contains such language as imports a complete legal obligation between the parties-it is complete, so that parol evidence will never be admitted to extend its obligations to cover matters upon which the writing is silent. Ehrsam v. Brown, 67 Pac. 867, 869, 64 Kan. 466.

An appeal bond conditioned to pay a money judgment is a "written contract for the payment of money," within Horner's Ann. St. 1897, § 293, cl. 5, barring actions on written contracts for the payment of money in ten years. Taylor v. Smith, 53 N. E. 1048, 1049, 22 Ind. App. 418.

A written contract creates a specified relation between the parties, and, when the duties of that relation are not fully defined in the contract, the law defines them according to the circumstances. In a carrier case it defines the duty in part by implying the exception against inevitable accident. Morrison v. Davis, 20 Pa. (8 Harris) 171, 177, 57 Am. Dec. 695.

Oral contracts compared.

There is no difference between the character of a written and verbal contract; the only difference being that in the one case the evidence of the terms of the contract is in writing, while in the other they are not. Musgrove v. City of Jackson, 59 Miss. 390, 392.

| WRITTEN EVIDENCE.

As the term is used with reference to a contract, it does not mean everything which is in writing relating to the contract, but that only which is of a documentary nature, containing the terms of a contract between the parties, and designed to be the repository and evidence of the final intentions. Cohen V. Jackoboice, 59 N. W. 665, 667, 101 Mich.

Code 1852, § 211, requiring suits on contracts in writing to be brought within 20 years, means a contract in which "the parties thereto, as well as its entire terms and stipulations, can be gathered from the instrument itself, or some other written instrument referred to therein, without the aid of 409 (citing 1 Greenl. Ev. c. 15). parol evidence to ascertain either." Board

of Com'rs of Marion County v. Shipley, 77 WRITTEN INSTRUMENT. Ind. 553, 555.

See, also, "Instrument."

The term "obligation or written contract," in the provision of the statute de- An "instrument of writing" is defined to claring that an obligation or written contract be something reduced to writing as a means of several persons shall be joint and several, of evidence. Abb. Law Dict. Webster de unless otherwise expressed, held not to em- fines it to be a writing expressive of some brace or apply to promissory notes or bills of act, contract, process, or proceeding, as a

WRITTEN INSTRUMENT

7545

WRITTEN INSTRUMENT

deed, contract, writ, etc. Webst. Dict. State, does not include an abstracter's certificate of v. Kelsey, 44 N. J. Law (15 Vroom) 1, 34. title. Lattin v. Gillette, 30 Pac. 545, 95 Cal. 317, 29 Am. St. Rep. 115.

An instrument of writing, "ecritura," is every deed that is made by the hand of a public "escribano," or notary of a corporation, or counsel, "concejo," or sealed with the seal of the king or other authorized person. United States v. King, 48 U. S. (7 How.) 833,

887, 12 L. Ed. 934.

Code Civ. Proc. § 339, requiring actions on a contract, obligation, or liability not founded on an "instrument of writing" to be commenced within two years, refers to contracts, obligations, or liabilities arising in or growing out of written instruments, not remotely or ultimately, but immediately; that is, to such contracts, obligations, or liabilities as arise from instruments of writing executed by the parties sought to be charged in favor of those who seek to enforce the contracts, obligations, or liabilities. Lattin v. Gillette, 30 Pac. 545, 547, 95 Cal. 317, 29 Am. St. Rep. 115.

Accounts.

The term "instrument in writing" is said by Bouvier to include bills, bonds, conveyances, leases, mortgages, promissory notes, and wills, but scarcely accounts, ordinary letters, or memoranda. To the same effect see And. Law Dict. So that, under a statute making it forgery to falsely make, etc., any promissory note and other enumerated instruments, "or any other instrument in writing," an account is not subject to forgery. State v. Heaton, 49 Pac. 493, 495, 17 Wash. 310.

Agreement for assignment of contract.

Comp. Laws, § 3450, providing that interest shall be allowed on all moneys after they become due on any bond, bill, promissory note, or "other instrument in writing," includes a written agreement for the assignment of a contract for the construction of railroad tunnels. Simms v. Hampson, 12

Certificate of notary.

An instrument partly written and partly printed, or wholly printed, with a written Pac. 686, 687, 2 Ariz. 233. signature thereto, and any signature or writing purporting to be a signature of or intended to bind an individual, partnership, corporation, or association, or an officer thereof, is a "written instrument," or a writing, within the provisions of the Penal Code. Gen. St. Minn. 1894, § 6694.

fer. Rogers v. State, 8 Tex. App. 401, 403.

Check.

The expression "instrument in writing," as used in Pasch. Dig. art. 2093, providing that he is guilty of forgery who, without lawful authority and with intent to injure or defraud, shall make a false instrument in The words "instrument in writing," as writing purporting to be the act of another, used in the article defining and punishing etc., does not include the certificate of a noforgery and other offenses affecting written tary public purporting to authenticate the instruments, include every writing purport- acknowledgment of a conveyance or transing to make known or declare the will or intention of the party whose acts it purports to be, whether the same be of record or under seal or private signature, or whatever other form it may have. It must be upon paper or parchment, or some substance made to resemble either of them. The words may be written, printed, stamped, or made in any other way or by any other device; and the words "in writing," "write," or "written" include all these modes of making. An instrument partly printed or stamped and partly written is an instrument in writing. Pen. Code Tex. 1895, art. 533.

By "instrument in writing," as used in the chapter defining and punishing false certificate, authentication, or entry by an officer, is meant any deed, conveyance, transfer, release, obligation, or other written instrument, of any kind or description whatever, which such commissioner is by law authorized to authenticate for record. Pen. Code Tex. 1895, art. 247.

Abstracter's certificate of title.

In Code Civ. Proc. § 339, limiting the commencement of an action upon a contract not founded on such an instrument to two years, the expression "instrument of writing"

See "Check."

County warrant.

Rev. Code 1845, p. 371, providing that every person who shall forge, etc., any “instrument in writing" purporting to be the act of another, shall be punished, etc., should be construed to include a county warrant. State v. Fenly, 18 Mo. 445, 449.

Indorsement on note.

The phrase "written instrument," as used in Comp. Laws Dak. § 3538, subd. 2, providing that a written instrument is presumptive evidence of a consideration, embraces the writing, "Extended to December 1, 1891," placed by the payee thereof on a promissory note pursuant to the agreement with the maker to extend the time of payment. Corbett v. Clough, 65 N. W. 1074, 1075, 8 S. D. 176.

Interest coupons.

Coupons for installments of interest on a mortgage will not draw interest after they become due as "written instruments," within

the meaning of Rev. St. Ill. c. 74, § 2, provid- all actions, allegations of the execution of ing that creditors shall be allowed interest written instruments, and indorsements thereat 6 per cent. on instruments in writing after on, of the existence of a corporation or partdue. United States Mortgage Co. v. Sperry nership, or of any appointment or authority, (U. S.) 26 Fed. 727, 729. shall be taken as true," etc., includes a mechanic's lien. Hayner v. Eberhardt, 15 Pac. 168, 169, 37 Kan. 308.

lien. State v. Phillips, 62 N. E. 12, 14, 157 the Secretary of State is entitled to receive Within Act Feb. 6, 1817, providing that

WRITTEN VOTES.

See "Written Ballots."

WRONG.

The stenographer's report of oral testimony, though filed in court, is not a written instrument, within the meaning of the Code, allowing written instruments to be brought into the record by reference in a skeleton bill of exceptions. Patterson v. Churchman, 122 Ind. 379, 22 N. E. 662, 23 N. E. 1082; Doyal v. Landes, 20 N. E. 719, 119 Ind. 479. The words have reference rather to bills, bonds, conveyances, leases, etc. They have a restrictive connotation, from being associated with the words "documentary evidence," and mean papers of that class. Patterson v. Churchman, 23 N. E. 1082, 1083, 122 Ind. 379. says: "A wrong is an invasion of right, to

Tax duplicate.

A tax duplicate is not a written instrument. Hazzard v. Heacock, 39 Ind. 172-174.

WRITTEN LAWS.

“The written laws of a kingdom are statutes, acts, or edicts." People v. Tiphaine (N. Y.) 3 Parker, Cr. R. 241, 244 (quoting 1 Bl. Comm. 85).

Los Angeles City Charter, p. 506, § 1889, declared by Const. art. 11, § 8, to be the organic law of the city, is a "written law." Frick v. City of Los Angeles, 47 Pac. 250, 251, 115 Cal. 512.

A "written law" is that which is promulgated in writing and of which a record is in existence. Code Civ. Proc. Cal. 1903, 1896; Ann. Codes & Sts. Or. 1901, § 733.

WRITTEN OPINION.

Prac. Act, § 340, relating to any "written opinion" placed on file in rendering judgment, does not refer to findings of fact, but probably refers to the reason or argument for any decision, judgment, or order, and is not synonymous with "written decision." Corbett v. Job, 5 Nev. 201, 205.

WRITTEN STATEMENT.

"A written statement is a series of facts or particulars expressed on paper." State v. Laughton, 8 Pac. 344, 350, 19 Nev. 202.

See "Contributing Wrong"; "Malicious
Wrong"; "Private Wrong"; "Public
Wrong."

Personal wrong, see "Personal Injury."

In Cooley, Torts, 98, the learned author

the damage of the party who suffers it. It consists in the injury done, and not comcapacity of the person or agent doing it. It monly in the purpose or mental or physical may or may not have been done with bad motive. The question of motive is usually a question of aggravation only. Therefore the law, in giving redress, has in view the case of a party injured and the extent of his injury, and makes what he suffers the measure of compensation. In its most usual sense, according to Mr. Blackstone (3 Bl. Comm. 158), wrong signifies an injury committed to the person or property of another, or to his relative rights, unconnected with contract; and these are committed with or without force. McDonald v. Brown, 51 Atl. 213, 214, 23 R. I. 546, 58 L. R. A. 768, 91 Am. St. Rep. 659.

ing that for every wrong there should be a The fathers of the common law, in sayremedy, by wrong meant a violation of the municipal law, the law of civil conduct, not a transgression of the divine law, as such, nor a breach of etiquette. Western Union Tel. Co. v. Ferguson, 60 N. E. 674, 676, 157 Ind. 64, 54 L. R. A. 846.

A wrong is a violation of one's right, and for the redress of every wrong there is a remedy. Want of right and want of remedy are justly said to be reciprocal. When, therefore, there has been a violation of right, the person injured is entitled to an action. Parker v. Griswold, 17 Conn. 288, 303, 42 Am. Dec. 739.

A wrong is a breach of a legal duty, and where there is no wrong there is no cause of action. Riddell v. Peck-Williamson

27 Mont. 44.

"Written statement," within the meaning of the statute defining an indictment to Heating & Ventilating Co., 69 Pac. 241, 243, be the written statement of a grand jury, etc., includes a printed form with its blanks properly filled in writing. Winn v. State, 5 Tex. App. 621, 623.

The "written statement" mentioned in Township Organization Act, art. 7, § 7, requiring the judges of an election to make a 8 WDS. & P.-48

"Wrong" means any deprivation of right, breach of contract, or injury done by one person to another. O'Connor v. Dils, 26 S. E. 354, 355, 43 W. Va. 54.

"Wrong" and "injury" are generally used as synonymous terms in the law. People v.