Page:Black's Law Dictionary (Second Edition).djvu/483

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(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 mentioned or left to the determination of the law to set u value on it; us when a servant hires himself to his master for certain wages or an agreed sum of money. 2 Bl. Comm. 445.

(Lat. I do that you may do.) A species of contract in the civil law (being one of the innominate contracts) 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 nets on both sides; or it may he to forbear nu one side in consideration of something done on the other. 2 Bl. Comm. 444.

A thing done; an action performed 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 "action" or "deed ;" but, although this usage survives, in some such phrases us "necessary 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 distinguished from fiction or error. Burrill, Circ. Ev. 218.

"Fact" is very frequently used in opposition or contrast to "law." Thus, questions of fact are for the jury: questions of law for the court. So an attorney at law is on officer of the courts of justice; an attorney in fact is appointed by the written nnihorlzation at u principal to manage business affairs usually not professional. Fraud in fact conslsts in an actual intention to defraud, carried into effect; while fraud lmputed by law arises from the man's conduct in its necessary relations and consequences.

The word is much used in phrases which contrast it with law. Law is a principle; fact is an event. Liiiv is conceived; fact is actual. Law is a rule of duty; tact is that which has been according to or in contravention of the rule. The distinction is well illustriited in the mic that the existence of foreign ions is matter oi.‘ fact. Withi_n the territory of its jurisdiction, law operates as an obligiitory rule which judges must recognize and enforce; hut. in a trihun 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 parties, must he _slicged and proved the same as the actual existence of any other institution. Abbott.

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FACT

The terms "tact" and "truth" are often used in common parlance as synonymous, but, as employed in reference to pleading. they are widely different. A fact in pleading is a circunistance. act. event, or incident; a truth is the legal principle which (leclaies or governs the facts and their operative effect. Admitting the facts stated in a complaint, the truth may be that the plaintiff is not entitled, upon the tace of his complaint, to what he claims. The mode in which n defendant sets up that truth for his protection is a demurrer. Drake v. Cocki-oft, 4 E. D. Smith (N. Y.) 37.

—Col1atex-al facts. Such ns nre outside the mntiou-isy or are not directly connected with the principal matter or issue in dispute. Sum- merour v. Felker, l02 Ga. 231, 29 S. E. 448; Gamer 17. State, 76 Miss. 515, 25 South. 363.- Dispositive facts. See that t.itle.—Evi.dentiary facts. Those which have a legitimate hi-aring on the matter or question in issue and which nrc rlircctiv (not infercutially) csL-iiilisii- ed by the evidence in the case. Woodhll v. I':itton, 76 Ind. 579, 40 Am. Rep. 2(i9.—I‘ac1;s in issue. Those matters of fact on which the plaintiff proceeds by his action and which the defendant controverts in his plendin-vs Gienn v Savage, 14 Or. 567, 13 File. 44.. King V. Chase, 15 N. H. 9. 41 Am. Dec. bio. Caperton v. Schmidt, 26 Gal. 49-1. 85 Am. DPP. 187. —Inferenti-.11 facts. Such us are established not directly by tesfimony or other evidence, but by inferences or conclusions drnun [ruin the evidence. Railway Co. v. l\'Iilier, 141 Ind. 533, 37 N. E. 3ai3.—Jurist‘iictiona.l fizcts. Those matters of fact ubich must exist hcfore the court can properly take jurisdiction of the particular case, as, that the defendant has been properly served with process, that the amount in controversy exceeds a certain suin, that the purties are citizens of riilfcrent stares. etc. Noliic v. Railroad Co., 147 U. 105, 13 Sup. Ct. 271, 37 L Ed. 1?3.—Material fact. (In _c _i tracts.) One which constitutes sohstanti. y the consideration of the contract, or without which it wuuid not have been made. Lyons v. Stephens. 45 Go. 143. (In pieiiding and practice.) One which is essential to the case, defense, application. etc., and without nhieb it could not be supported. Adams v. Way. : Conn. 168; Snndheger v. Hos ', 26 W. Va. 22.5: Davidson v. Iliwkett, 49 Wis. 136, 5 N. W. 459. (In insurance.) A fact which increases the risk, or Miich, if disclosed, would have been a. fair reason for demanding a higher premium; any fact the knowiedge or ignorance of "hi would naturally influence the insurer in making or refusing the contract, or in estimating the degree and character of the risk, or in fixing the rate. Boggs v. insurance 0)., 30 Mo. 68; Clark v. Insurance Co.. 40 N. H 338, 77 Am. Dec. 721; Murphy v. Insurance Co., 205 Pa. 4-14, 55 Ati. 19; Penn Miit. L. Ins. Co. v. Mechanics‘ Snv. Bank, 72 Fed. 413, 19 C. C. A. 236. 38 L R. A 33.—Principa1 fact. In the law oi! evidence. A fact sought and proposed to be proved by evidence of other facts (termed "eviilcntinry 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 beiief is required to be fnrmefl. Bciith. Jurl. Ev. 3: Rurriii, Ciro Fv. 3, 119. —'U1ti.mnte fact. The final or resulting fact readied by processes of logical reasoning from the detached or successive facts in evident- and which is fundamental and rleti-rininritive o the whole case. Levins I’. Rovogno, 71 Cal. 273, 12 Pac. 161: Kshn v. Central Snielfing Cn.. 2 Utnh. 371: Caywood v. Farrell, 175 Ill. 480, 51 N. E. 775.

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