the defendant is not at liberty to difpute[1]. And theſe fictions of law, though at firſt they may ſtartle the ſtudent, he will find upon farther conſideration to be highly beneficial and uſeful: eſpecially as this maxim is ever invariably obſerved, that no fiction ſhall extend to work an injury; it's proper operation being to prevent a miſchief, or remedy an inconvenience, that might reſult from the general rule of law[2]. So true is it, that in fictione juris ſemper ſubſiſtit aequitas[3]. In the preſent caſe, it gives the ſuitor his choice of more than one tribunal, before which he may inſtitute his action; and prevents the circuity and delay of juſtice, by allowing that ſuit to be originally, and in the firſt inſtance, commenced in this court, which after a determination in another, might ultimately be brought before it on a writ of error.
For this court is likewiſe a court of appeal, into which may be removed by writ of error all determinations of the court of common pleas, and of all inferior courts of record in England: and to which a writ of error lies alſo from the court of king's bench in Ireland. Yet even this ſo high and honourable court is not the dernier reſort of the ſubject; for if he be not ſatisfied with any determination here, he may remove it by writ of error into the houſe of lords, or the court of exchequer chamber, as the caſe may happen, according to the nature of the ſuit, and the manner in which it has been proſecuted.
VII. The court of exchequer is inferior in rank not only to the court of king's bench, but to the common pleas alſo: but I have choſen to conſider it in this order, on account of it's double capacity, as a court of law and a court of equity alſo. It is a very antient court of record, ſet up by William the conqueror[4],
y Thus too in the civil law: contra fictionem non admittitur probatio: quid enim efficeret probatio veritatis, ubi fictio adverſus veritatem fingit? Nam fictio nihil aliud eſt, quam legis adverſus veritatem in re poſſibili ex juſta cauſa diſpoſitio, (Gothofred. in Ff. l. 22. t. 3.) z 3 Rep. 30. 2 Roll. Rep. 502. a 11 Rep. 51. Co. Litt. 150. b Lamb. Arcbeion. 24.
