Page:Black's Law Dictionary (Second Edition).djvu/503

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FICTION

which has never reaily taken place. New Hampshire Stratford Bank v. Cornell, 2 N.H. 324; Hibberd v. Smith, 07 Cal. 547, 4 Pac. 473. 56 Am. Rep. 726.

A fiction is a rule of law which assumes as true, and will not allow to be disproved, something which is false, but not impossible. Best. Ev. 419.

11 r.» assumptions are of an innocent or even benvllcial cbiir.icter. rind are made for the ad- vsincoinent of the ends of justice. They secure this end chiefly by the extcnsinn of procedure from cases In which it is Hflpiiciliilc to other cus-cs to “lllCI] it is not strictly upplioalilc, the ground of innppiiciibilily by i_: some ditference of an immaterial character. I-lrown.


Fictions are to be distinguished from pre suinptioiis of law. By the former. something known to be false or unreal is assumed as true: by the latter, an inference is set up. which may be and probably is true, but which. at any rate, the law will not permit to be controverted.

.\Ir. Best distinguishes legal fictions finm presumptians jurie et lle jaw, and divides thorn into three kinds.—nlfirmative or posithe fictions, negative fictions, and fictions by relation. Best, Pres. p. 27, § 2-L

FICTITIOUS. Founded on a fiction; having the character of a fiction; false. feigned, or pretended.

—!‘ictitious action. An action brought for ihe sole purpose of obtaining the opinion of the court on it point of law, not for the settlement of any actual controversy between the parties. Smith v. Junction Ry. CU.. 29 Ind. 5-'31.—Fictitious mune. A counterfeit. feigned, or pretended name taken by a person. differing in some essential particular from his true name. (consisting of Christian name and patrunymir.) viitb the implication tbnt it is meant to deceive or mislead. iiut a fictitious name may be unnzl so 1011,: or under such circumstances as to lie- enmc an ‘‘assumed name. in “’IlIlI] case it may lieeome a proper designation of the individual fur (lfllillflly business and legal purposes. See Pnlliird v. Fiileiity 17‘. Ins. Ca. 1). 57 , -[T i\'. W. )' ' Carlock v. Cngnucci. 99 Cal. I300. 26 Pac. .—Fict.itIous plaintiff‘. A person appearing in the writ or record as the plaintiff in a suit, but who in reality does not exist, or who is ignornrlt of the suit and of the use of his name in it. It is a contempt of court tn sue in the name of a fictitious party. See 4 Bl. Comm. 134.

C pic‘

FIDE-COMMISSARY. A term derived from the Latin "fliiai cr)nzmissariii.s," and accasionally used by writers on equity jurisprudence as a substitute for the law French term "ceatui qiie trust." as being more ele- gant and euplionlous. See Brown v. Brown, 83 Hun. 160. 3] N. Y. Supp. 650.

ITDEI-COMMISSARIUS. In the civil law this term corresponds nearly to our “ceatul we trust." It designates a person who has the real or beneficial interest in an estate or fund, the title or administration of which is temporarily confided to another. See story, Eq. Jur. § 966.

I‘IDEI-COMMISSUM. In the civil law. A species or trust; being a gift of property

495

FIDES SERVANDA

(usually by will) to a person. accompanied by a request or direction of the donor that the recipient iiill transfer the property to an- other, the latter being 3, person not capable of taking directly under the will or gift. See Succession of Mennier, 52 La. Ann. T9. 26 South. 776, 48 L. R. A. 77; Gortario v. Cantu. 7 Tex. 44.

FIDI}-JUBERE. In the civil linv. To order a thing upon one's faith. to pledge one's self; to become surely for another. Fiile-jubear Fide-jubw: Do you pledge yourself‘! I do pledge myself. Inst 3, 16, 1. One of the iorins of stipulation.

FIDE-JUSSOR. In Itorndn law. A guar- antor; one who becomes responsible for the payment of i1not,l.ier‘s debt, by -a stipulation Wliich liiiiils him to discharge it if the pi icnipal debtor fails to do so. .\la(:keid. Rom. Law, 5 -£52; 3 Bl. Coniin. 103.

The sureties tniien on the arrest of a defendant, in the court of admiralty, were formerly denuniinated "/iilc juasora." 3 Bl. Comm. 108.

FIDI}-I-‘ROMISSOR. See FXDE-JUSSOB.

FIDELITAS. Lat. 1T‘eaity.(q. 1).)

Fidelitas. De nnllo tenexnento, quad tenetllr ad terminum, fit hnmagii; fit tamen inde fidelitatis sncrnmentum. Cu. Litt. GT6. Fealty. For no tenement which is held for a term is there the oath of ham- age, but there is the oath of realty.

FIDELITY INSURANCE. ANCE.

See INSUR-

FIDIIM MENTIRI. Lat. To betray faith or fealty A term used in feudal and old English law of a feudatory or feudal tenant who does not keep that fealty which he has sworn to the lord. Len‘. Hen. I. c. 53.

FIDES. Lat. I-"alth; honesty; confi- dence: trust; veracity; honor. Occurring in the phrases “boiia fidca," (good faith.) “mum rides,” (bad faith.) and “ubcrrinia rides." (the utmost or most abundant good faith.)

Fitles est ohligatio conseientiaa alien- jus ad intentionem nlterins. Bacon. A trust i an obligation of conscience of one to the will of another.

rides servandn est. Faith must be ob- served. An agent must not violate the confi- dence reposed in him. Story, Ag. 5 192.

Fides lervanda est; simplicitas jurls gentium prevalent. Faith must be kept; the simplicity of the law of nations must prevail. A rule applied to bills of exchange as a sort of sacred instruments. 3 Burrows, 1672; Story, Bilis. § 15.

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