KFLCC Kingdom Law 2nd Ed.

495

FIDES SERVANDA

FICTION

which has never really taken place. New Hampshire Strafford Bank v. Cornell, 2 N. H. 324; Hibberd v. Smith, 67 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, Bv. 419. These assumptions are of an innocent or even beneficial character, and are made for the ad vancement of the ends of justice. They secure this end chiefly by the extension of procedure from cases to which it is applicable to other cases to which it is not strictly applicable, the ground of inapplicability being some difference of an immaterial character. Brown. Fictions are to be distinguished from pre sumptions 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. Mr. Best distinguishes legal fictions from pre sumptions juris et de jure, and divides them- in to three kinds,—affirmative or positive fictions, negative fictions, and fictions by relation. Best, Pres. p. 27, § 24. FICTITIOUS. Founded on a fiction; hav ing the character of a fiction; false, feigned, or pretended. —Fictitious action. An action brought for the sole purpose of obtaining the opinion of the court on a point of law, not for the settlement of any actual controversy between the parties. Smith v. Junction Ry. Co., 29 Ind. 551.— Ficti tious name. A counterfeit, feigned, or pre tended name taken by a person, differing in some essentia] particular from his true name, (consisting of Christian name and patronymic,) with the implication that it is meant to deceive or mislead. But a fictitious name may be usod so long or under such circumstances as to be come an "assumed" name, in which case it may become a proper designation of the individual for ordinary business and legal purposes. See Pollard v. Fidelity F. Ins. Co., 1 S. D. 570, 47 N. W. 1060; Carlock v. Cagnacci, 88 Cal. 600, 26 Pac. 597.— Fictitious 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 ignorant of the suit and of the use of his name in it. It is a contempt of court to sue in the name of a fictitious party. See 4 Bl. Comm. 134. and oc casionally used by writers on equity juris prudence as a substitute for the law French term "cestui que trust," as being more ele gant and euphonious. See Brown v. Brown, 83 Hun, 160, 31 N. Y. Supp. 650. FIDEI-COMMISSARIUS. In the civil law this term corresponds nearly to our "ces tui que 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. FIDEI-COMMISSUM. In the civil law. A species of trust; being a gift of property FIDE-COMMISSARY. A term derived from the Latin "fidei-commissarius"

(usually by will) to a person, accompanied by a request or direction of the donor that the recipient will transfer the property to an other, the latter being a person not capable of taking directly under the will or gift. See Succession of Meunier, 52 La. Ann. 79, 26 South. 776, 48 L. R. A. 77; Gortario v. Cantu, 7 Tex. 44. To order a thing upon one's faith; to pledge one's self; to become surety for another. Fide-jubest Fide-jubeo: Do you pledge your self? I do pledge myself. Inst. 3, 16, 1. One of the forms of stipulation. In Roman law. A guar antor; one who becomes responsible for the payment of another's debt, by a stipulation which binds him to discharge it if the prin cipal debtor fails to do so. Mackeld. Rom. Law, § 452; 3 Bl. Comm. 108. The sureties taken on the arrest of a de fendant, in the court of admiralty, were for merly denominated "fide jussors." 3 Bl. Comm. 108. FIDE-JUBERE. In the civil law. FIDE-JUSSOR.

FIDE-FROMISSOR.

See

FIDE-JUSSOR.

FIDELITAS.

Lat. Fealty, («. v.)

Fidelitas. De nullo tenemento, quod tenetur ad terminum, fit homagii; fit tamen inde fidelitatis sacramentum. Co. Litt 676. Fealty. For no tenement which is held for a term is there the oath of hom age, but there is the oath of fealty.

FIDELITY INSURANCE.

See INSUR

ANCE.

FIDEM 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. Leg. Hen. I. c. 53. Faith; honesty; confi dence ; trust; veracity; honor. Occurring in the phrases "bona fides," (good faith,) "mala fides," (bad faith,) and "uberrima fides," (the utmost or most abundant good faith.) Fides est obligatio conscientise alicu jus ad intentionem alterius. Bacon. A trust is an obligation of conscience of one to the will of another. Faith must be ob served. An agent must not violate the confi dence reposed in him. Story, Ag. § 192. FIDES. Lat. Fides servanda est. Fides servanda est; simplicitas juris gentium prsevaleat. Faith must be kept; the simplicity of the law of nations must pre vail. A rule applied to bills of exchange as a sort of sacred instruments. 3 Burrows, 1672; Story, Bills, § 15.