FIAT IN BANKRUPTCY. An order of the lord chancellor that a cornmissi•n of bankruptcy shall issue. 1 Deacon, Batik. 106.
Fiats are abolished by 12 & 13 Viet. c. 116. FICTION. The legal assumption that something which is or may be false is true.
2. The expedient of fictions is sometimes resorted to in law for the furtherance of justice. The law making power has no need to resort to fictions : it may establish its rules with simple reference to the truth; but the courts, which are confined to the ad ministration of existing rules, and which lack the power to change those rules, even in hard cases, have frequently avoided the injustice that their ap plication to the actual facts might cause, by as suming, in behalf of justice, that the actual facts are different from what they really are. Thus, in English law, when; the administration of criminal justice is by prosecution at suit of the crown, the courts, rather than disregard the rules under which all other parties stand in respect to their neglect to appear and prosecute their suits, adopt the fiction that the king is legally ubiquitous and always in court, so that he can never be non-suited. Fictions are a singular illustration of the stability and the justice of the common law, which did not hesitate to deny plain matters of fact, if that were the only way to avoid either violating the law or using the law against justice.
3. Fictions are to he distinguished on the one hand from presumptions of law, and on the other hand from estoppels. A presumption is a rule of law prescribed for the purpose of getting at a certain conclusion, though arbitrary, where the subject is intrinsically liable to doubt from the remoteness, discrepancy, or actual defect of proofs. Thus, an infant under the age of seven years is conclusively presumed to be without discretion. Proof that he had discretion the court will not listen to. In the nature of the subject, there must be a limit, which it is better should be a general though arbitrary one than be fluctuating and uncertain in each case. An estoppel, on the other hand, is the rule by which a person is 'precluded from asserting a fact by previous conduct inconsistent therewith on his own part or the part of those under whom he claims, or by an adjudication upon his rights which he cannot be allowed to question.
4. The familiar fictions of the civil law and of the earlier common law were very numerous; but the more useful of them have either been superseded by authorized changes in the law or have gradually grown as it were into distinct principles, forming exceptions or modifications of those principles to evade which they were at first contrived. As there
is no just reason for resorting to indirection to do that which might be done directly, fictions are ra pidly disappearing before the increasing, harmony of our jurisprudence. See 4 Bentham, Ey. 300 ; 2 Pothier, Obl. Evans ed. 43. But they have doubt less been of great utility in conducing to the gra dual amelioration of the law ; and, in this view, fiction, equity, and legislation have been named to as the three methods of the improvement of the law.
5. Theoretical writers have classified fic tions as of five sorts : abeyance, when the fee of land is supposed to exist for a time without any particular owner during an out standing freehold estate, 2 Blackstone, Comm. 107 ; 1 Cruise, Dig. 67-70 ; Merlin, Rep. Abeyance; 1 Comyns, Dig. 175 ; 1 Vine; Abr. 104 ; the doctrine of remitter, by which a party who has been disseised of his freehold, and afterwards acquires a defective title, is remitted to his former good title ; that one thing done to-day is considered as done at a preceding time by the doctrine of relation; that, because one thing is proved, another shall be presumed to be true, which is the case in all presumptions; that the heir, execu tor, and administrator stand by representation in place of the deceased. Again, they have been classified as of three kinds: positive, when a fact which does not exist is assumed ; negative, when a fact which does exist is ignored ; and fictions by relation, when the act of one person is taken as if it were the act of a different person,—e.g. that of a ser vant as the act of his master ; when an act at one time or place is treated as if performed at a different time or place ; and when an act in relation to a certain thing is treated as if it were done in relation to another thing which the former represents,—e.g. where de livery of a portion of goods sold is treated as giving possession of the whole. Best,. Pres. 27.
6. Fictions being resorted to simply for the furtherance of justice, Coke, Litt. 150 ; 10 Coke, 42 ; 1 Price, Exch. 154 ; 1 Cowp. 177, several maxims are fundamental to them. First, that that which is impossible shall not be feigned. D'Aguesseau, (Euvres, tome iv. pp. 427, 447 c, Plaid° yer ; 2 Rolle, 502. Second, that no fiction shall be allowed to work an injury. 3 Blackstone, Comm. 43 ; 17 Johns. N. Y. 348. Third, a fiction is not to be car ried further than the reasons which intro duced it necessarily require. 1 Lilly, Abr. 610 ; 2 Hawkins, Pl. Cr. 320 ; Best, Pres. 20.
Consult Dalloz, Diet.; Burgess, Ins. 139, 140 ; Ferguson, MDral Phil. pt. 5, c. 10, 3 ; 1 Toullier, 171, n. 203 ; 2 id. 217, n. 203 ; 11 id. 10, n. 2.