Vickipedia

FICTION OF LAW has been defined to be ‘ a supposition of law that a thing is true, which is either certainly not true, or at least is as probably false as true.’�Erskine, lust. iv. 2, 38. Fictions have existed in all legal systems. They must be regarded as a species of legal fraud, which has been tolerated as enabling individuals who, by the strict letter of the law, would have been excluded from obtaining redress of evils, to procure that remedy by a pious fraud. There are two general maxims which regulate the application of fictions�viz., that no fiction shall be allowed to operate a wrong, and that no fiction shall be admitted which in the nature of things is impossible. The Roman form of judicial procedure abounded with fictions, by which alone, in many cases, a party aggrieved could enforce his right. Thus, an heir, unjustly disinherited, by the querela inofficiosi testamenti, feigned that his father had been mad. A stranger in Rome, who had been robbed, could not obtain restitution without the fictio civitatis, whereby he feigned himself a citizen. Many of the fictions existing in Rome have found a counterpart in modem systems; thus, the fictio long� manus , whereby lands at a distance were feigned to be delivered, resembles an English feoffment at law. In like manner, the fictio traditionis symbolic� of keys of a warehouse to give possession of the articles contained therein, and of a deed in confirmation of the covenants contained therein. The fictio unitatis personarum was the original of the Scottish fiction, that the heir is eadem persona cum defuncto. But in no system of laws have fictions been so liberally adopted as in that of England. It is by means of fictions alone that the original limited jurisdiction of the courts of Queen’s Bench and Exchequer has been extended to ordinary suits. In the latter court, every plaintiff assumed that he was a debtor to the crown, and was debarred from discharging his obligation by the failure of the defendant to satisfy his demand; in the former, it was assumed that the defendant had been arrested for some supposed trespass which he had never in fact committed.

The fictitious characters of John Doe and Richard Roe long contributed to make the action of ejectment famous. And though these fictions have disappeared before the ruthless hand of modern legislation, yet to this day, in an action at the instance of a father for the seduction of his daughter, damages can only be awarded on the assumption that she was his servant, and that he has suffered pecuniary loss by deprivation of her services. In Chancery, again, the whole doctrine of uses and trusts is based upon a fiction. Perhaps the best explanation of the introduction of fictions into legal systems is to be found in Dr. Colquhoun’s Summary of the Roman Civil Law, 2027. It involves, he says, ‘ less difficulty to adhere to known and admitted forms, and gradually to accommodate them to the changed state of society, than to upset all the incidents connected with them by a sudden change, which must ever tend to unsettle the law and practice of the courts. All nations have therefore found it more desirable to let the one glide into the other, than to adopt any abrupt measure which might disturb the practice and effect of former decisions. In the law of Scotland, fictions of law are not of frequent occurrence. For the benefit of creditors, the principle that the hen-is eadem persona cum defuncto is admitted; and in an action of ‘ Reduction-improbation ‘ of a deed, it is assumed that the document was false, whether the fact be so or not. But in general the legal system of Scotland has shown a facility of adapting itself to the circumstances of the case, and that without producing the alarming results which presented themselves to the imagination of Dr. Colquhoun.