FICTION. The legal assumption that something which is or may be false is true.
The expedient of fictions is sometimes resorted to in law for the furtherance of justice. Corkran Oil & Development Co. v. Arnaudet, 199 17. S. 194, 26 Sup. Ct. 41, 50 L. Ed. 143. 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 administration of existing rules, and which lack the power to change those rules, even in hard cases, have fre quently avoided the injustice that their application to the actual facts might 'cause, by assuming, in behalf of justice, that the actual facts are different from what they really are. Thue, in English law, where the administration of criminal justice is by prosecution at suit of the crown, the courts, rather than disregard the rules under which all other par ties 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. The employment of fictions is a eingular illustration of the justice of the common law, which did not hesitate to con ceal or affect to conceal the fact, that a rule of law hae undergone alteration, its letter 'remaining un changed.
Fictio in the old Roman law was properly a term of pleading and signified a false averment on the part of the plaintiff which the defendant was not allowed to traverse; ae that the plaintiff was a Roman citizen, when in truth he was a foreigner. The object of the fiction was to give the court juris diction ; Maine, Ane. Law 25.
Fictions are to be distinguished on the one hand from presumptions of law, and on the other band, 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 un certain 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 incon sistent, therewith on bla own part or the part of those under whom he claims, or by an adjudication upon: his rights which he cannot be allowed to ques tion.
This distinction is thus expressed by a Scotch writer: A /lain Jura differs from a presumption. Things are presumed which are likely to be true; but a fiction of law assumes for truth what is ei ther false, or at least is as probably false as true. Thus, an heir is feigned or considered in law as the same person with his ancestor; thus, also, writ ings against which certification is obtained in a re duction-improbation are judged to be false ftctione juris, though the most convincing proof shall be brought that they once existed and were genuine. Fictions of law must in all their effects be always limited to the special purpose of equity for which they were introduced. Ersk. Prin. 631.
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 rapidly disappearing before the increasing harmony of our jurisprudence. See 4 Benth. Ev. 300; 2 Pothier, Obl., Evans' ed. 43. But they have doubt less been of great utility in conducing to the grad ual amelioration of the law ; and, in this view, fic tion, equity, and legislation have been named to gether as the three instrumentalities' in the im provement of the law. They have been employed historically in the order here given. Sometimes two of them will be seen operating together, and there are legal systems which have escaped the influence of one or the other of them. But there is no in stance in which the order of their appearance has been changed or inverted. Maine, Anc. Law 24.