- FICTIONS OF LAW By Barry Smith One of the first times that I learned about fictions of law I was reading an old case here in Colorado called City of CanyonMessage 1 of 1 , Aug 29, 2007View Source
FICTIONS OF LAW
By Barry Smith
One of the first times that I learned about fictions of law I was reading an old case here in Colorado called City of Canyon City v. Merris, 323 P.2d 614 ( Colo. 1958). In that case the Court said:
"In England , prior to the Corporation Act of 1835, the authority of the municipal corporation to enact bylaws, always rested upon implication of law. By that act, the municipal council was empowered to make such by-laws as were necessary for the prevention and suppression of all nuisances, not punishable by act of Parliament. The corporation was also given the power to impose fines in a sum not to exceed five pounds. The act also prescribes that prosecution for the breach of any ordinance shall be begun within three months after the offence has occurred; and that the charge shall be made on oath; summons also must be served, but the magistrate may proceed without the appearance of the defendant, and may issue a warrant for his arrest. Upon conviction, the fine must be paid at once, unless the magistrate shall consider it proper to extend the time. If the fine is not paid, its payment may be enforced by a distress and sale; and for want of sufficient goods to distrain, the offender may be imprisoned for a period not to exceed one month, but which may be terminated upon the payment of the sum due. At the common law, the method of enforcing an ordinance was by an action by the municipal corporation or proper official against the offender, to recover the penalty imposed for the violation of the ordinance. This action was, in form, either debt or assumpsit.
“The action of assumpsit was employed in the recovery of penalties, upon the theory that there had been a breach of the duty which, by a fiction of law, the defendant had promised the plaintiff to perform.”
That concept was also expressed in Baltimore & Ohio Railroad Company v. United States, 1923.SCT.252 <http://www.versuslaw.com>261 U.S. 592, 67 L. Ed. 816, 43 S.Ct. 425 (1923):
“The "implied agreement" contemplated by the Dent Act as the basis of compensation, is not an agreement "implied in law," more aptly termed a constructive or quasi contract, where, by fiction of law, a promise is imputed to perform a legal duty, as to repay money obtained by fraud or duress, but an agreement "implied in fact," founded upon a meeting of minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding… The action of debt could be employed because the penalty was a sum certain, and in the nature of liquidated damages. And when it was expressly provided, that the penalty should be recovered by an action of debt, that form was exclusive, and no other could be employed.”
I learned more about "fictions" in Corpus Juris Secundum (C.J.S.):
“Fiction of law. A legal assumption that a thing is true which is either not true or which is as probably false as true; an assumption or supposition of law that something which is or may be false is true, or that a state of facts exists which has never really taken place; the assumption, for the purposes of justice, of a fact which does not or may not exist; the legal assumption or invention that something is true, which is, or may be, false; an assumption of an innocent and beneficial character, made to advance the ends of justice. It is generally recognized that fictions of law are invented and instituted for the promotion of justice. And they are not allowed to work injustice or to defeat the policy of the state. A fiction of law may not be contradicted so as to defeat the end for which it was invented, but for every other purpose it may be contradicted.” 36A C.J.S. Fiction pg. 377.
Hmmm, I was thinking I was on to something interesting, so, I next turned to Bouvier's Law Dictionary and found this:
“FICTION OF LAW. The assumption that a certain thing is true, and which gives to a person or thing, a quality which is not natural to it, and establishes, consequently, a certain disposition, which, without the fiction, would be repugnant to reason and to truth. It is an order of things which does not exist, but which the law prescribe; or authorizes it differs from presumption, because it establishes as true, something which is false; whereas presumption supplies the proof of something true. Dalloz, Dict. h.t. See 1 Toull. 171, n. 203; 2 Toull. 217, n. 203; 11 Toull. 11, n. 10, note 2; Ferguson , Moral Philosophy, part 5, c. 10, s. 3 Burgess on Insolvency, 139, 140; Report of the Revisers of the Civil Code of Pennsylvania, March 1, 1832, p. 8.
“2. The law never feigns what is impossible fictum est id quod factum non est sed fieri potuit. Fiction is like art; it imitates nature, but never disfigures it it aids truth, but it ought never to destroy it. It may well suppose that what was possible, but which is not, exists; but it will never feign that what was impossible, actually is. D'Aguesseau, Oeuvres, tome iv. page 427, 47e Plaidoyer.
“3. Fictions were invented by the Roman praetors, who, not possessing the power to abrogate the law, were nevertheless willing to derogate from it, under the pretense of doing equity. Fiction is the resource of weakness, which, in order to obtain its object, assumes as a fact, what is known to be contrary to truth: when the legislator desires to accomplish his object, he need not feign, he commands. Fictions of law owe their origin to the legislative usurpations of the bench. 4 Benth. Ev. 300.
“4. It is said that every fiction must be framed according to the rules of law, and that every legal fiction must have equity for its object. 10 Co. 42; 10 Price's R. 154; Cowp. 177. To prevent, their evil effects, they are not allowed to be carried further than the reasons which introduced them necessarily require. 1 Lill. Ab. 610; Hawk. 320; Best on Pres. Sec. 20.
“5. The law abounds in fictions. That an estate is in abeyance; the doctrine of remitter, by which a party who has been disseised of his freehold, and afterwards acquires a defective title, is remitted to his former good title; that one thing done today, is considered as done, at a preceding time by the doctrine of relation; that, because one thing is proved, another shall be presumed to be true, which is the case in all presumptions; that the heir, executor, and administrator stand by representation, in the place of the deceased are all fictions of law. "Our various introduction of John Doe and Richard Roe," says Mr. Evans, (Poth. on Ob. by Evans, vol. n. p. 43,) "our solemn process upon disseisin by Hugh Hunt; our casually losing and finding a ship (which never was in Europe) in the parish of St. Mary Le Bow, in the ward of Cheap; our trying the validity of a will by an imaginary, wager of five pounds; our imagining and compassing the king's death, by giving information which may defeat an attack upon an enemy's settlement in the antipodes our charge of picking a pocket, or forging a bill with force and arms; of neglecting to repair a bridge, against the peace of our lord the king, his crown and dignity are circumstances, which, looked at by themselves, would convey an impression of no very favorable nature, with respect to the wisdom of our jurisprudence." Vide 13 Vin. Ab. 209; Merl. Rep. h.t.; Dane's Ab. Index, h.t.; and Rey, des Inst. de I'Angl. tome 2, p. 219, where he severely censures these fictions as absurd and useless.” Bouvier's Law Dictionary, 1856.
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