Meaning: In fiction of law equity always exists.
The following case will serve to illustrate this maxim : Where one disseise another, and during the disseisin cuts down trees, and afterwards the disseisee re-enter ; he shall have an action of trespass, vi et armis, against the disseisor for the trees ; for after the regress of the disseisee, the law doth suppose the freehold to have been always in him. But if the disseisor make a feoffment to another in fee, and the disseisee afterwards re-enter, he shall not in that case have an action, vi et armis, against those who come in by title ; for the fiction of law that the freehold has always continued in the disseisee shall not have relation to make him who comes in by title a wrong doer vi et armis; for, “In fictione juris semper sequitas existit.”
Formerly, an action of debt could not be brought in the Queen's Bench, excepting on the supposition that the defendant was an officer of the court, or was in custody of the marshal of the court for a supposed trespass which he had committed, and which supposition the defendant was not permitted to dispute ; but, being so in custody, was liable to be sued in that court for all personal injuries. And the reason of this fiction of law was, to prevent circuity of action, and to give to the plaintiff a choice of courts in which to sue ; the action for debt being at that period confined to the Court of Common Pleas, as the only court then having original jurisdiction in such actions, the Queen's Bench being a court of appeal from that court.
The seisin of the conusee in a fine also was a fictio juris, being an invented form of conveyance merely ; so was a common recovery. Contracts made at sea, also, were feigned to have been made in London, in order to take the cognizance of all actions and suits in respect thereof from the Admiralty courts and give it to the courts of common law at Westminster.
In fiction of law, “Rex non potest peccare,” and “Rex nunquam moritur.” In fiction of law, a man in possession of property is considered to be rightfully in possession until the contrary be shown ; and a man is considered to be innocent of a crime laid to his charge until by a legally-constituted tribunal he be found guilty. So, also, a man being convicted of felony and adjudged a felon is civilly dead and incapable in the eyes of the law of making or enforcing any contract for his benefit. All his goods and chattels, also, thereby become forfeited to the Crown ; but they do not become forfeited until conviction, and therefore an assignment by him thereof made after the commission day of the assizes, but before conviction, is valid, and will defeat the title of the Crown, notwithstanding that the whole assizes are by fiction of law considered as one day.
The law will not be satisfied with fiction where it may be otherwise satisfied, nor must fictions be further used than necessity requires. A fiction must not be contrary to law, nor must it be that which is merely imaginary. It must be possible of performance, and also equitable in its operation. It is a rule or form of law that supposes a thing to be which either is or is not. It is, nevertheless, founded in equity, and will not be permitted to work injustice. Its proper operation is to prevent mischief, or to remedy an inconvenience which might otherwise result from the general rule of law. Recent legislation has, however, in most instances supplanted legal fiction by positive statutory enactment, that which remains remaining solely from an implied necessity arising out of public convenience.