KFLCC Kingdom Law 2nd Ed.

475

FAOIO UT DE8

FACT

FACIO ITT DES. (Lat. I do that you may give.) A species of contract in the civil law (being one of the innominate contracts) which occurs when a man agrees to perform anything for a price either specifically men tioned or left to the determination of the law to set a value on it; as when a servant hires himself to his master for certain wages or an agreed sum of money. 2 BL Comm. 445. FACIO UT FACIAS. (Lat I do that you may do.) A species of contract in the civil law (being one of the innominate con tracts) which occurs when I agree with a man to do his work for him if he will do mine for me; or if two persons agree to marry together, or to do any other positive acts on both sides; or it may be to forbear on one side in consideration of something done on the other, 2 Bl. Comm. 444. A thing done; an action per formed or an incident transpiring; an event or circumstance; an actual occurrence. In the earlier days of the law "fact" was used almost exclusively in the sense of "ac tion" or "deed;" but, although this usage survives, in some such phrases as "accessary before the fact," it has now acquired the broader meaning given above. A fact is either a state of things, that is, an existence, or a motion, that is, an event 1 Benth. Jud. Ev. 48. In the law of evidence. A circumstance, event or occurrence as it actually takes or took place; a physical object or appearance, as it actually exists or existed. An actual and absolute reality, as distinguished from mere supposition or opinion; a truth, as dis tinguished from fiction or error. Burrill, Circ. Ev. 218. "Fact" is very frequently used in opposi tion or contrast to "law." Thus, questions of fact are for the jury; questions of law for the court So an attorney at law is an of ficer of the courts of justice; an attorney in fact is appointed by the written authoriza tion of a principal to manage business affairs usually not professional. Fraud in fact con sists in an actual intention to defraud, car ried into effect; while fraud imputed by law arises from the man's conduct in its neces sary relations and consequences. The word is much used in phrases which con trast it with law. Law is a principle; fact is an event Law is conceived; fact is actual. Law is a rule of duty ; fact is that which has been according to or in contravention of the rule. The distinction is well illustrated in the rule that the existence of foreign laws is matter of fact Within the territory of its jurisdiction, law operates as an obligatory rule which judges must recognize ana enforce; but, in a tribunal outside that jurisdiction, it loses its obligatory force and its claim to judicial notice. The fact that it exists, if important to the rights of par ties, must be alleged and proved the same as the actual existence of any other institution. Abbott FACT.

The terms "fact" and "truth" are often used in common parlance as synonymous, but as employed in reference to pleading, they are widely different. A fact in plead ing is a circumstance, act, event, or incident; a truth Is the legal principle which declares or governs the facts and their operative ef fect. Admitting the facts stated in a com plaint, the truth may be that the plaintiff is not entitled, upon the face of his complaint, to what he claims. The mode in which a defendant sets up that truth for his protec tion is a demurrer. Drake v. Cockroft, 4 B. D. Smith (N. Y.) 37. —Collateral facts. Such as are outside the controversy or are not directly connected with the principal matter or issue in dispute. Sum merour v. Felker, 102 Ga. 254, 29 S. E. 448; Garner v. State, 76 Miss. 515, 25 South. 363.— Dispositive facts. See that title.—Eviden tiary facts. Those which have a legitimate bearing on the matter or question in issue and which are directly (not inferentially) establish ed by the evidence in the case. Wbodfill v. Patton, 76 Ind. 579, 40 Am. Rep. 269.—Facts in issue. Those matters of fact on which the plaintiff proceeds by his action and which the defendant controverts in his pleadings. Glenn v. Savage, 14 Or. 567, 13 Pac. 442; King r. Chase, 15 N. H. 9, 41 Am. Dec. 675; Caper ton v. Schmidt 26 Cal. 494, 85 Am. Dec. 187. —Inferential facts. Such as are established not directly by testimony or other evidence, but by inferences or conclusions drawn from the evidence. Railway Co. v. Miller, 141 Ind. 533, 37 N. E. 343.—Jurisdictional facts. Those matters of fact which must exist before the court can properly take jurisdiction of the par ticular case, as, that the defendant has been properly served with process, that the amount in controversy exceeds a certain sum, that the parties are citizens of different states, etc. No ble v. Railroad Co., 147 U. S. 165, 13 Sup. Ct 271, 37 L. Ed. 123.—Material fact. (In con tracts.) One which constitutes substantially the consideration of the contract or without which it would not have been made. Lyons v. Stephens, 45 Ga. 143. (In pleading and prac tice.) One which is essential to the case, de fense, application, etc., and without which it could not be supported. Adams v. Way, 32 Conn. 168; Sandheger v. Hosey, 26 W. Va. 223; Davidson v. Hackett, 49 Wis. 186, 5 N. W. 459. (In insurance.) A fact which increases the risk, or which, if disclosed, would have been a fair reason for demanding a higher premium; any fact the knowledge or ignorance of which would naturally influence the insurer in mak ing or refusing the contract or in estimating the degree and character of the risk, or in fixing the rate. Boggs v. Insurance Co., 30 Mo. 68; Clark v. Insurance Co.. 40 N. H. 338, 77 Am. Dec. 721; Murphy v. Insurance Co., 205 Pa. 444, 55 Atl. 19; Penn Mut L. Ins. Co. v. Mechanics' Sav. Bank, 72 Fed. 413, 19 C. C. A. 286, 38 L. R. A. 33.—Principal fact. In the law" of evidence. A fact sought and proposed to be proved by evidence of other facts (termed "evidentiary facts") from which it is to be deduced by inference. A fact which is the principal and ultimate object of an in quiry, and respecting the existence of which a definite belief is required to be formed. 3 Benth. Jud. Ev. 3; Burrill, Circ. Ev. 3, 119 —Ultimate fact. The final or resulting fact reached by processes of logical reasoning from the detached or successive facts in evidence, and which is fundamental and determinative of the whole case. Levins v. Rovegno, 71 Cal. 273, 12 Pac. 161; Kahn v. Central Smelting Co, 2 Utah. 371; Caywood v. Farrell, 175 111. 480, 51 N. B. 775.