FICTITIOUS PAYEE. When a con tract, such as negotiable paper, is drawn in favor of a fictitious person, and has been indorsed in such name, it is deemed payable to bearer as against all parties who are privy to the transaction ; and a holder in good faith may recover on it against them. 2 H. Blackst. 178, 288 ; 3 Term, 174; 182, 481; 1 Campb. 130 ; 19 Yes. Ch. 311. And see 10 Barnew. & C. 468 ; 2 Sandf. N. Y. 38 ; 2 Du. N. Y. 121.
(L. Lat.). In Civil Law. One who has a beneficial interest in an estate which, for a time, is committed to the faith or trust of another. This term has nearly the same meaning as cestui que trust has in the common law. 1 Greenleaf, Cruise, Dig. 295 ; Story, Eq. Jur. 966 •, Bouvier, Inst. Index.
Fidel-commissary and fide-commissary, an glicized forms of this term, have been pro posed to take the place of the phrase cestui que trust, but do not seem to have met with any favor.
According to DuCange, the term was some times used to denote the executor of a will.
(L. Lat.). In Civil Law. A trust. A devise was made to some person (hceres fiduciarius), and a re quest annexed that he should give the pro perty to some one who was incapable of taking directly under the will. Inst. 2. 23. 1; 1 Greenleaf, Cruise, Dig. 295; 15 How. 357. A gift which a man makes to another through the agency of a third person, who is requested to perform the will of the giver.
2. The rights of the beneficiary were merely rights iu curtesy, to be obtained by entreaty or request. Under Augustus, how ever, a system was commenced, which was completed by Justinian, for enforcing such trusts. The trustee or executor was called
hceres fiduciarius, and sometimes fide-jussor. The beneficial heir was called hceres fidei-com missarius.
3. The uses of the common law are said to have been borrowed from the Roman fidei commissa. 1 Greenleaf, Cruise, 295 ; Bacon, Read. 19 ; 1 Madd. Ch. 446 ; Story, Eq. Jur.
966. The fidei-commissa are supposed to have been the origin of the common-law system of entails. 1 Spence, Eq. Jur. 21 ; 1 Washburn, Real Prop. 60. This has been doubted by others. See 1 Bouvier, lust. n. 1708.
An act by which any one binds himself as an additional security for another. This giving security does not destroy the liability of the principal, but adds to the security of the `surety. Vicat, Voc. Jur.; Hallifax. Annals, b. 2, c. 16, n. 10.
In Civil Law. One who becomes security for the debt of another, promising to pay it in case the principal does not do so.
Re differs from a co-obligor in this, that the latter is equally bound to a debtor with his prin cipal, while the former is not liable till the principal has failed to fulfil his engagement. Dig. 12. 4. 4; 16. 1. 13; 24. 3. 64; 38. 1. 37; 50. 17. 110 ; 6. 14. 20; Ilall, Pract. 33; Dunlap, Adm. Pract. 300; Clerke, Prax. tit. 63-65.
The obligation of the fide-jussor was an accessory contract ; for, if the principal obli gation was not previously contracted, his engagement then took the nrune of mandate. Leg. Elem. 872; Code Nap. 2012.