Page:The New International Encyclopædia 1st ed. v. 07.djvu/637

* FICTION OF LAW. rule of law has undergone alteration, its letter remaining unchanged, its operation being modi fled." In this sense it includes everj modifies tion of existing rules of law by judicial deei si, .n. It is In this process of changing legal rules by the fiction thai judges arc simply de daring the law, when, in fact, they are chang- ing it in order to make it conform to the new standards of morality or to the novel needs of society, that English common law owes its clas- tic and progressive character. Examples of legal fiction, using the term in its narrow sense, are found in the old forms of pleading. In the action for the conversion (q.v.) of goods, the plaintiff's declaration alleged that lie had lost the goods in question, and that t lie defendant had found them. This allegation was generally untrue, but the defendant was not permitted to deny it. By a fiction of pleading the courts of King's Bench and Exchequer came to share in the jurisdiction 'of the Common Pica.-. Originally (as lias been pointed out under I ni kt and Exchequer, Court of) the King's Bench was a criminal court exclusively, and its jurisdiction over civil actions was obtained by permitting the plaintiff to allege falsely that the defendant was in the custody of the King's marshal for a breach of the peace, and by pre- cluding the defendant from denying it. Having brought the defendant before the court, on this fictitious charge, the plaintiff was allowed to proceed against him for any civil wrong. In a similar manner, the Exchequer extended its juris- diction over civil actions by permitting a plaintiff to allege that he was a debtor of the King and was prevented from paying his debt by the de- fendant's wrongful act or default. "And these fictions of law," Blackstone observes, "though at first they may startle the student, he will find them upon further consideration to be highly bene- ficial and useful, especially as this maxim is in- variably observed, that no fiction shall extend to work an injury, its proper operation being to pre- vent a mischief or remedy an inconvenience that might result from the general rule of law." Con- sult: Maine, Ancient haw (London, 1887), and the authorities referred to under Constitution- al Law; Custom -, and Jurisprudence. FICTOOR, fik'tor, Jan. See Victors, Jan. FI'CUS. See Fir;. FI'CTJS RTJ'MINA'LIS. The sacred fig-tree which protected Romulus and Remus when they were abandoned on the banks of the Tiber. It stood near the Lupercal, and according to the tradition was miraculously conveyed by the augur, Attus Navius, to the Comitium. Beneath it stood the famous bronze statue of the wolf. The tree is said by Tacitus to have shown no signs of decay until 841 years after it had shel- tered the twins. FIDDLE. See Violin. FIDDLER BEETLE. See Fungus Beetle. FIDDLER CRAB. A small crab of the ge- nus Uca (or Gelasimus) enormously abundant on muddy shores along the eastern coast of the United States south of Cape Cod. "The males have one claw very largely developed: the other chela is small. The former is likened to a fiddle, the latter to a bow, and this, together with the waving motion of the large claw, gives them their popular name. . . . The female has claws of 581 FIDEICOMMISSUM. small and equal size." I he I i mi mo -i inland ra aging pecii i Uca n easily distinguished bj having a pa d at the joints of the legs. Another, extending its range around the Cuir of Mexico ami n ighout i he West In, In--, i - / ca pugnaa . . thii [I . a i,n, it i,i i,,,, i- more marine, inhabiting sand- bars and beaches. M an gai ing in the sail in i i, numbers and making burrow-, in the mud. line of high I ide. These holi i from ha If an inch to i wo inches in diameter, i I cupy i hem a refuge . and ' ca mina o foi I pi [lets ei mud an a rched pent hou e over ii - hole, in which it sils and watches what Q ll the species wander about a good deal, and alarmed cuttle sidewise with comical speed into the first burrow they come to. Thej are n tarians, feeding on minute alga', etc., which they scrape up and put into I he mouth with the smaller claws. The burrowing of this crab often dues serious injury to embankments, particularly the levees near the mouth of the Mississippi Consult: Verrill, Invertebrates of I ineyard Bound (Washington, 1874), reprinted in Goode Fishery Industries, Section I. (Washii 34); and Arnold, The Sea Beach ai Ebl Tide (New V I 1 . Sec CBAB, and Plate ofCBAB FIDDLER-FISH. Sec GttlTAB-FlSH. FIDEICOMMISSUM, fi'de - 1 - kom -mi (Lat., committed to faith, bequest). At Roman law. the fnh ■ifiinirnhf.-iiin was a trust bequest. Dur- ing the republican period, a valid bequest could be made only in the form of a legacy in a regular tesl ail. It was. however, ii"t unusual for a person, acting in contemplation of death, hut not wishing to leave a testament, or not wishing I" substitute a new testament for one already made. to charge the person who was to take the inherit- ance, whether by law or by testament, with the duty of paying a sum of money, or giving some particular thing or things, to a third person; or to charge the person who was to receive a legacy with the duty of transmitting the legacj or - portion of it or of its value to a third person. Such directions might be given in writing (i i ill i) or orally, before witnesses or without wit- nesses; but in no ease, before the time of Augustus, was the duty imposed by such a charge anything more than a moral duty. Augus- tus made all such bequests, however informal, recoverable by action, and instituted a special i it for trust-bequest cases. During the early Imperial period it became not unusual to impose upon an heir, by such a trust bequest, the duty of handing over to a third person the entire estate or some fractional part of it (so-called 'universal' trust bequest) ; and it wa i i by the Senate that in such cases the third person should be compelled to accept, in proportion to the share of the estate which he was to re- ceive, the position and obligations of an heir or universal successor. The effeel of this whole development was that testation was practically freed from all formalities. In the late Empire a reaction occurred in favor of greater formality; and in the Justinian law a codicil with live wit nesses was required for the establishment "f trust bequests. Justinian, indeed, enacted that an oral charge imposed upon the heir should be actionable, but excluded all evidence excepi that of the claimant and the heir, and provided that