FICTION OF LAW (1,at. fictio, a fashion ing, a feigning. from /ingere, to fashion. to feign). A legal assumption that something is true which is known not to be true, or which may be false. The term legal fiction is used by Sir Ilenry Maine in a wider sense than that given to it. in the Roman la W or by most English-speaking lawyers. Ile employs it "to signify any assumption which conceals, or affects to conceal. the fact that a rule of law has undergone alteration, its letter remaining unchanged, its operation being modi fied." In this sense it includes every modifica tion of existing rules of law by judicial deci sion. It is to this process of changing legal rules by the fiction that judges are simply de claring the law, Mien, in fact, they are chang ing it in order to make it conform to the new standards of morality or to the novel needs of society, that English common law owes its elas tic and progressive character.
Examples of legal fiction, using the term in its MHTONV sense, are found in the old forms of pleading. In the action for the conversion (q.v.) of goods, the plaintiff's declaration alleged that he had lost the goods in question, and that the defendant had found them. This allegation was generally untrue, but the defendant was not permitted to deny it. By a fiction of pleading the courts of King's Bench and Exchequer came to share in the jurisdiction 'of the Common Pleas. Originally (as has been pointed out under
COURT and EXCHEQUER, COURT 011 the King's Bench was a criminal court exclusively, and its jurisdiction over civil actions was obtained by permitting the plaintiff to allege falsely that the defendant was in the custody of the King's marshal for a breach of the peace, and by pre eluding the defendant from denying it. Having brought the defendant before the court on this fictitious charge, the plaintiff was allowed to proceed against him for any civil wrong. In a similar manner, the Exchequer extended its juris diction over civil actions by permitting a plaintiff to allege that he was a debtor of the King and was prevented from paying his debt by the de fendant's wrongful act or default. "And these fictions of law," Blackstone observes, "though at first they may startle the student, he will find them upon further consideration to be highly bene ficial and useful, especially as this maxim is in variably observed, that no fiction shall extend to work an injury, its proper operation being to pre vent a mischief or remedy an inconvenience that might result from the general rule of law." Con sult; Maine. J »eient Lace (London. 1887), and the authorities referred to under CONSTITUTION AL Law; CUSTOM; and •URISPRUDENCE.