Legal Fictions before the Age of Reform

© Springer International Publishing Switzerland 2015
Maksymilian Del Mar and William Twining (eds.)Legal Fictions in Theory and PracticeLaw and Philosophy Library11010.1007/978-3-319-09232-4_10

10. Legal Fictions before the Age of Reform

Michael Lobban 

Law Department, London School of Economics, Houghton Street, London, WC2A 2AE, UK



Michael Lobban


Before the era of reform, the common law was replete with fictions. The procedure by which litigation commenced in the common law courts was premised on fictions, while litigants also used fictions to enable themselves to avail themselves of convenient remedies. In allowing litigants to make false statements of facts, the courts allowed the law to develop in new directions, while disguising the fact that it was changing. However, there were also other kinds of fictions, which operated more like rules of law. They included ‘metaphysical’ fictions (as where something which no longer existed was deemed still to be in existence) as well as ‘fictions’ which were in effect metaphors or analogies. This chapter explores the operation of these fictions, as well as the criticisms and defences made of fictions before their nineteenth century reform.

10.1 Introduction

[T]hese fictions of law, though at first they may startle the student, he will find upon farther consideration to be highly beneficial and useful: especially as this maxim is ever invariably observed, that no fiction shall extend to work an injury; its proper operation being to prevent a mischief, or remedy an inconvenience, that might result from the general rule of law.1

William Blackstone

Fiction of use to justice? Exactly as swindling is to trade.2

Jeremy Bentham

In the era before the nineteenth-century reforms, fictions abounded in the common law . Very few indeed were those litigants whose case did not rest, in one form or another, on a legal fiction . Fictions came in various kinds. The most obvious, perhaps, were the procedural fictions, which allowed litigants to use an historically-established form of procedure for purposes for which it was not originally designed. The common law itself, as S.F.C. Milsom has shown, developed in the later middle ages through the use by opportunist litigants and their lawyers of writs in ways which had not been envisaged by the Chancery clerks who had issued them.3 As judges allowed one form of action to be used for novel purposes, so new areas of law could develop in the royal courts. In this way, the medieval action of trespass vi et armis, which was a remedy for forcible wrongs done contra pacem regis could give birth over time to a general action for torts (trespass on the case), a contractual action (assumpsit) and an action to recover property (ejectment) . By pretending the novel case was a variant of the old established one, lawyers could obtain better and cheaper remedies for their clients.

The language of pleading often carried anachronistic hallmarks of the action’s heredity: thus, the declaration in the famous case of Scott v. Shepherd—where the defendant had thrown a lighted squib into a covered market, which had blinded the plaintiff in one eye—began with the words that he had ‘with force and arms, (to wit) with sticks, staves, clubs and fists, made an assault upon the plaintiff’.4 Such words in pleading were mere matters of form: historical hangovers in pleading, which did not need to be proven in court.5 As Maine saw, fictions allowed the law to develop, while disguising the fact that it was changing. They maintained a sense of stability in law, at the same time that the law moulded itself to the needs of its community.6 The drawback of this method of change was that it made the orderly arrangement of the law extremely difficult.

As shall be seen in what follows, there was other kinds of fictions as well, which were not devices to allow for change. These included more ‘metaphysical’ fictions, as where courts treated something which had happened at one time as having occurred at another, or where something which no longer appeared to exist was deemed to have a continued existence. Finally, some things were described as ‘fictions’, which were in reality metaphors or analogies used to explain and describe legal effects, but where no one pretended that the fiction was true. In what follows, we will examine these different kinds of fictions which were used in the common law , how they were used, and how contemporaries regarded them.

10.2 ‘Factual’ Fictions

The common law was replete with procedural fictions, which allowed one form to be used for a novel purpose. In a number of areas, the procedure rested on a fiction that the parties had taken certain steps in the case. The steps in question were ones which litigants had in fact taken in past cases, but which were no longer required, so much so that the court forbade any challenge to the formal assertion that these steps had been taken. Such ‘factual’ fictions had allowed all three common law courts to expand their business in the later middle ages. A fiction of this kind lay behind the Bill of Middlesex and latitat procedure which was used to commence most litigation in the King’s Bench , which rested on a fiction that the defendant had committed a trespass in the county of Middlesex, for which he could be arrested and brought into the custody of the marshal of the Marshalsea prison. The King’s Bench had an actual jurisdiction over those in the custody of its prison, and the procedure had its origin from a time when litigants used this procedure against adversaries who had in fact been detained; but by the eighteenth century, it had lost all connection with the real fact situations which had given birth to it.7 Reality had given way to fiction as the King’s Bench sought to attract more litigants, and the other common law courts responded in turn with fictions of their own to get parties into court more quickly than they could by using the older procedure by original writ.8

Equally familiar were the ruses used by litigants in exploiting existing forms of action which they adapted by pretence to the needs of their case. Among these was the action of ejectment , the action most commonly used to settle questions of title to property. This action—which was, in form, a tort —rested on a fictitious lease by the real claimant to a fictitious nominal plaintiff in the case, John Doe . The declaration claimed that Doe had entered into the lands in question ‘and was thereof possessed’, until one Richard Roe—another fictitious person, known as the ‘casual ejector’ —entered ‘with force and arms’ and ejected him. The declaration also contained a letter written by Roe to the real defendant, advising him to appear in court and be substituted as defendant, ‘otherwise I shall suffer judgment to go against me, and you will be turned out of possession.’9 The remedy had its origin in late medieval cases where real lessees had been ousted from their land, and were unable to use the action for novel disseisin, since as lessees they did not have seisin of the land. Since this remedy was more efficient than the older real actions , landowners began to use it, by going through the motions of leasing the land and having their lessee ejected. ‘Doe’ and ‘Roe’ might then have been real people, friends of the real claimant . But by the middle of the seventeenth century, the superior courts had begun to allow parties to use this form without going through the process of granting actual leases: at the same time, they only allowed defendants to defend the case if they did not deny the lease, entry and ouster.10 The courts were clearly aware that the facts on which the claim rested were not true, and had clear rules preventing the defendant from denying them.11

In other areas, forms of action which had evolved to address one problem were adapted to other uses through the use of fictions. They included the action of trover, developed in the later middle ages to give a remedy for the recovery of personal property. 12 The notion of finding was first used to extend the reach of the action of detinue, which was originally only available against bailees, rather than third parties; and it was soon also used in trespass actions. Parties continued to allege that the goods had been lost and found, but the allegations that the plaintiff had ‘casually lost’ the goods and that the defendant had found them were not traversable. 13 The gist of the action was the defendant’s refusal to hand them over. 14 The action had expanded, like many others, because of its procedural advantages over the alternative. 15 The contractual action of assumpsit also expanded through the strategic use of fictions. Originally used as a (‘tortious’) alternative to the inconvenient action of covenant, with plaintiffs claiming the misperformance of an undertaking, it expanded in the fifteenth century to provide in addition a remedy for nonfeasance, for which a ‘tortious’ justification could be found by adding an allegation that the defendant intended to defraud the plaintiff. By the early seventeenth century, assumpsit could also be used in lieu of debt, for the payment of money contractually owed. 16 In the action of indebitatus assumpsit, the plaintiff declared that a promise had been made—that ‘being so indebted, he undertook’—but the promise itself was fictitious, and could not be challenged, since it was implied by the existing debt. When parties pleaded ‘non assumspit’ they consequently did not put in issue the promise, but rather the underlying debt. 17 The action of assumpsit could itself also be used ‘fictitiously’ to raise questions on a feigned issue or wager. Where this was done, a question of right to be settled between the parties would be framed as the subject of a bet contracted between them, and the matter would be referred to a jury to determine. 18 This device was used by courts (notably the Chancery) to allow disputed matters to be tried by a jury at the assizes.

Besides such devices to allow parties to use one form to get a more convenient remedy, fictions had evolved in the middle ages to allow parties to transfer property or resettle estates. Like the procedural fictions, these originated in procedures which had once actually taken place. One example was the common recovery, a device perfected in the fourteenth century to bar the perpetual entails which had been permitted by the statute De Donis (1285). 19 It involved a collusive real action , in which the tenant in tail would grant the land to another in fee simple. That grantee would then bring a real action claiming title to the land against the tenant, who would vouch a third party to warrant his title. This ‘vouchee’, who was bound to the tenant to give equivalent land to him if he lost the case, would request a delay but then not appear to defend the case. The collusive plaintiff would consequently gain the land; and the heirs in tail would have to look to the vouchee who had guaranteed their title. However, since the vouchee was a man of straw, they would get nothing. Although in reality this was a fraudulent device to deny the heirs in tail of their inheritance, in its early history it involved real parties using a legitimate procedure recognised in law. There was nothing on the record to show that the heirs were being defrauded by virtue of the fact that the vouchee had no assets in land to be recovered. The real procedure soon turned into a fiction, and by the nineteenth century, instead of using a man of straw, the deputy custos brevium served as the common vouchee, obtaining a fee for the work. 20

Entails could also be barred, and estates conveyed, by means of a fine, which was a judgement on record arising from a collusive suit. Here, the prospective grantee of land brought a writ of covenant against the prospective grantor. Once the action had commenced, these parties applied to the court to compromise the action in a final concord. The court registered the concord, which acknowledged the right of the grantee—keeping the ‘foot of the fine’ in court. This method of ‘levying a fine’ was often used when parties sought to resettle land: the party wishing to resettle would grant the land to the grantee—called the ‘conusee’ 21 —who would then grant it back. According to Blackstone , this device was first used in real suits commenced at law for the possession of land, but it was soon found so useful that ‘fictitious actions were, and continue to be, every day commenced, for the sake of obtaining the same security.’ 22

10.3 ‘Metaphysical’ Fictions

The examples discussed so far suggest the use of fictions as a merely formal device, to bring a case to court, with the courts pretending that something had taken place—which conceivably could have taken place, or which as a matter of fact had taken place in similar cases in the past—even though they knew it had not occurred in the case before them. At the same time, there was also much discussion in the literature of more abstract fictions, which were very different in their nature and operation. These ‘fictions’ were rules created by the law, rather than the parties, to solve particular conceptual or doctrinal problems. Such fictions might be described as ‘metaphysical’ fictions, insofar as they deemed things to have happened or to exist when in fact they did not. There were also ‘explanatory’ fictions, which were used as tools to explain, justify or make sense of law. These could take the form of metaphors which helped describe a rule of law, the ‘fiction’ in effect taking the form of an analogy . They could also take the form of historical fictions, which served no other purpose than to justify a rule which was fixed.

The more ‘metaphysical’ fictions can be seen in a list of five kinds of fiction found ‘in our law’ described by Dodderidge J in 1625: ‘abeyance, relation, representation, remitter, & presumption’. 23 The fiction of representation, Dodderidge ­explained, could be seen in the notion that ‘parliament is the whole realm’, that the ‘jury before the justices of oyer and terminer are the whole county’ and that ‘the ­executors of a testator, [or] a husband and wife, are one person by representation’. The notion that a husband and wife were one person could of course never be literally true: it was a metaphysical fiction allowed for the purposes of the law. 24 Dodderidge did not explain the others, assuming that his auditors were familiar with the doctrines he had in mind; but it is evident that they were rules of law developed by the judges, which often also had metaphysical overtones. When a title to property was in ‘abeyance’, it was said to be ‘in the clouds’. 25 This was Coke’s description of the position of the freehold in a parsonage, where the fee was in ‘abeyance’ between the death of one incumbent and the nomination of his successor. 26 The freehold continued to exist, though it was not vested in any person. With this in mind, Charles Viner defined property in abeyance as being ‘in Expectation, in Remembrance, Intendment, Consideration or Understanding of Law’. 27 The doctrine of relation deemed things which had occurred at one moment to have had effect from some earlier moment. 28 Thus, if a man committed an act of bankruptcy, and some time later a bankruptcy commission was issued against him, vesting his property in the commissioners, they were held to have rights over the property from the moment of the first act of bankruptcy; so that if he had disposed of the goods in the meantime to bona fide purchasers, they could still recover them. Similarly, the rights of an administrator of an estate ‘related back’ to the moment of the death of the person whose estate was being administered, and he could recover any goods removed in the interim. The doctrine of remitter allowed a person who had both an ancient and a more recent title to property, but who had entered by the recent title which turned out defective, to be taken to hold it by virtue of the older and surer right. According to Coke, ‘the ancient right is restored and set up againe, and the new defeasible estate ceased and vanished away’. 29

Despite the metaphysical problems raised by the these doctrines , it was not always entirely clear to writers that they were properly described as fictions, rather than as rules of law. 30 Thus, according to Giles Jacob, remitter was an ‘Invention of the Law […] in Favour of Right.’ 31 Equally, presumptions (Dodderidge’s fifth example) were often not regarded as fictions, but as beliefs which were so strong that something had occurred that they were taken to amount to proof. 32 These fictions might consequently be regarded as the kind of fiction Hobart had in mind when he observed, ‘those things are properly fictions in law that have no real essence in their own body, but are so acknowledged and accepted in law, for some special purpose.’ 33

There was also another set of conceptual ‘fictions’ much discussed in the literature , which operated more as explanatory analogies than as the kind of ‘metaphysical’ fictions described above. This was the case, for instance, with the ‘fiction’ that a corporation was a ‘body politic’, whereby an aggregate of different individuals were made into one person by a ‘Policy or Fiction of Law.’ 34 Strictly speaking, a corporation was not a fictitious person; rather it was a creature of the law, which gave it a ‘personality’ analogous to that of a human. 35 While it was ‘said to be invisible, immortal, and to exist only in supposition and intendment of law,’ 36 Stewart Kyd pointed out that no one was deceived by these notions:

That a body framed by the policy of man, a body whose parts and members are mortal, should in its own nature be immortal, or that a body composed of many bulky, visible bodies, should be invisible, in the common acceptation of the words, seems beyond the reach of common understandings. A corporation is as visible a body as an army… When, therefore, a corporation is said to be invisible, that expression must be understood, of the right in many persons, collectively, to act as a corporation, and then it is as visible in the eye of the law, as any other right whatever. 37

A number of fictions acting as explanatory analogies were also used to describe the legal position of the king. Both parliament and king were corporations ‘in virtue of their political character, by the universal assent of the community, from the most remote period to which their existence can be traced’. 38 The king was consequently said to have two bodies: he was not only a natural person, but also an artificial ‘body politic’ with the status of a corporation sole. This legal status gave the king certain capacities denied to other natural persons, such as the power of being able to make binding grants while under age. 39 It also generated the apparent fiction that ‘the king never dies’. This fiction connoted the fact that his heir’s reign commenced at the moment of his death, without the title to the crown ever being in abeyance. The maxim was neither literally true, nor legally comprehensive: for (as Maitland pointed out), when kings died much of the legal machinery of the state was disrupted, as officers appointed by one king lost their positions on his demise and had to be reappointed. 40 The fiction was a metaphor : in fact, kings did die, both naturally and legally.

A number of other fictitious qualities attributed to the king were means to sum up and explain rules of law about kingship. The commonly recited maxim that ‘the king could do no wrong’ summed up the constitutional rule that only the king’s ministers, but not the king himself, could be held legally accountable in court. Similarly, the system of tenures was premised on the assumption that all land was held mediately or immediately of the crown. Although some seventeenth century historians had contended that the king had acquired title to all land by conquest in 1066, eighteenth century jurists such as Sir Martin Wright pointed out that it was rather a ‘fundamental necessary Maxim, Principle or Fiction of our English Law of Tenures’ which did not reflect historical reality. 41 Like the fiction surrounding other corporations, the fictions surrounding the king were largely ways of summarising certain legal rules respecting his powers, by way of analogy.

Historical fictions were also used to explain other settled rules of law. For instance, under the common law of tenures, a collateral relative could only inherit land from the last person seised of it if he was ‘of the whole blood’. This was a settled rule of law in the eighteenth and early nineteenth centuries. The fiction used to explain it was that all land tenures derived from an original feudal grant in exchange for personal military service. In the feudal world, the original grantor would accept the grantee’s heir as a substitute—since he could rely on his loyalty—but not the sons (or heirs) of those who might be his enemy. Since one could not be sure of the progeny of the ‘half-blood’, they were excluded. The same rules applied to modern grants of land in fee simple, which were fictitiously held to derive from an ancient ancestor who had been given the feudal grant. 42

Edward Wynne also resorted to history to explain the anomalous rule that a person who entered another’s land, cut his corn, and took it away, was only guilty of a bare trespass , whereas a person who took away corn which had already been cut was guilty of a felony. Wynne’s explanation for a rule which seemed to impose a severer penalty on the lesser offence rested on a historical explanation of the reason behind the rule. It was, he argued, assumed in the language of the law that every man’s property was fully fenced, and that it was more difficult to get onto enclosed land to cut the corn, than simply to take it when unattached. This justified imposing a severer penalty on an offence which was easier to commit. In the past, Wynne argued, it was probably true that all land was securely fenced; and indeed ‘the very supposition is not, even at this day, a bare fiction’. Nonetheless, it was a legal supposition in trespass pleadings that the defendant had broken the owner’s close. 43 What was a fiction of pleading was held to explain a substantive rule, which (like the exclusion of the half-blood) looked anomalous. Such conjectures and fictions might be used to rationalise a settled rule; but they could also make the rule vulnerable to reform.

10.4 The Working of Fictions

Writers on fictions frequently invoked maxims to show how they were to be used. Invoking the civilian maxim ‘fictio juris est legis adversus veritatem ex rei possibili justa [causa dispositio]’ in 1625, 44 Dodderidge J set out three rules about the working of fictions. Firstly, they had to be possible, ‘for law imitates nature’; secondly, they had to be ‘for the preservation of a ground of the law’, and introduced from necessity; and thirdly, they could not be used to the prejudice of any man, since the law would not do a wrong. Later writers added other maxims, such as that fictions ‘must be framed according to the rules of law, and there ought to be equity and possibility in every legal fiction.’ 45 The fact that the use of fictions was limited by law was often mentioned. Thus, ‘[a]ll fictions of law are to certain respects and purposes and extend only to certain persons.’ 46 In particular, ‘[t]he king is not to be answered, bound or defeated by fictions.’ 47 More broadly, the civilian maxim that ‘in fictione juris semper subsistit aequitas’ was frequently invoked. 48 This maxim was interpreted to mean that ‘[n]o fiction shall extend to work an injury’ and that ‘the law will never make any fiction, but for necessity, and in avoidance of a mischief.’ 49

These maxims were generally invoked in discussion of the ‘abstract’ fictions, rather than the more routine procedural ones. Nonetheless, some fictions which looked ‘procedural’ did raise abstract issues, which opened the way for a consideration of how far they should be used. For instance, the use of fines to resettle property involved a ‘conceptual’ fiction as well as the ‘factual’ fiction that there was a dispute to be litigated. As Blackstone explained, a fine was ‘an acknowledgement of a feoffment on record’: 50 in such cases, the livery of seisin was fictitious, but since it was recognised in court, it obtained ‘an equal notoriety’ as a feoffment. As John Lilly explained, in a phrase often quoted, ‘[t]he Seisin of the Conusee in a Fine is but a meer Fiction in Law, and an invented Form of Conveyance only’. 51 What this somewhat allusive phrase meant was that the conusee, who was granted the land to reconvey, was recognised as having only ‘seisin in an instant to make this render back, but to no other purpose to the prejudice of the conusor’. This meant that it did not entitle his wife to any dower rights, nor did it give his heirs or creditors any rights. 52 It was the law which determined the extent to which the fiction would operate.

Courts were also left to explore the meaning of other procedural fictions. For instance, parties were able to sue at Westminster on contracts made overseas, but they had to allege as a matter of form that they had been made in England, to bring them within the jurisdiction of the court. This involved claiming that the overseas territory was in fact in the metropolis: as where one alleged that a contract was made ‘at Fort St. David in the East Indies, to wit at London in the parish of St Mary le Bow in the ward of Cheap’. 53 How far such fictions could be used was considered in Mostyn v. Fabrigas, where the King’s Bench had to consider whether it could entertain an action of tort committed on the island of Minorca (then under British rule). As Lord Mansfield explained, the fiction that a foreign location was situated in London deceived no one into thinking that it was really so: ‘it is a fiction of form; every country has its forms, which are invented for the furtherance of justice; and it is a certain rule, that a fiction of law shall never be contradicted so as to defeat the end for which it was invented, but for every other purpose it may be contradicted.’ 54 In this case, the fiction was invented to permit a trial to take place in London. However, as elsewhere, there were limits to the use of this fiction: it was only to be used in ‘transitory’ actions, rather than those where the matter in question was ‘local’, involving matter (such as issues of property rights) which could only be determined by a local jury. 55

The most extensive discussions of the ‘equitable’ use of fictions were to be found in the discussion of the abstract fictions described by Dodderidge. One case often mentioned as illustrating the working of fictions was Richard Liford’s case. According to Coke’s report of the case, if a man in possession of land was dispossessed by another, who cut down the trees, grass or corn, he could, on recovering possession of the land, sue the disseisor in an action of trespass vi et armis, for the law accepted the fiction that the plaintiff had been in possession of the land all along. However, if the disseisor granted the land to a third party, the plaintiff could not ‘have trespass vi et armis against those who came in by title; for this fiction of the law, that the freehold continued always in me, shall not have relation to make him, who comes in by title, a wrong doer vi et armis, for in fictione juris semper æquitas existit. 56 Since it would be inequitable to charge the person who came in by a title, the plaintiff had to recover all the mesne profits from the original disseisor. 57 As Justice Coleridge put it (commenting on the case in 1837), ‘[h]ere is a fiction of law and therefore moulded by law to meet the ends of justice.’ 58

The idea that third parties should not be adversely affected by fictions was seen particularly in the discussions of the doctrine of relation in land cases. 59 The sixteenth century case of Butler v. Baker had laid down a rule that the doctrine should ‘extend only between the same parties; and never be strained to the prejudice of third persons, who are no parties or privies to the act.’ 60 In this case, a widow’s waiver of an estate entailed to her husband and herself and their children (in order to have her dower) was held to render her estate void ab initio by relation; but her waiver was not held to have relation to the grant of the reversion, for ‘in destruction of a lawful estate vested, the law will never make any fiction.’ 61 The court accepted that, by relation, her husband could be held to have been seised alone of the estate, but it did not accept that other heirs could be devested of their estates by relation; for ‘no relation shall make that tortious which was lawful for, as it hath been said, relations are fictions in law, which will never do wrong’. 62 The case illustrates the principle that fictions were not to be used to work a wrong, and it reveals how the court in that case used the doctrine of relation in a qualified manner. Nonetheless, it should be noted that third party rights were sometimes adversely affected by the doctrine of relation (as in bankruptcy cases); and indeed, a later reporter felt it necessary to make the point that ‘[i]t is true that there is sometimes loss and damage to third persons consequent upon them [relations], but then it is what the law calls damnum absque injuria, which is a known and stated difference in the law’. 63

The principle that when fictions ‘are urged to an intent and purpose not within the reason and policy of the fiction, the other party may shew the truth’ was regularly applied in litigation involving legal fictions concerning the date on which legal processes had taken place. 64 When the defendant in Morris v. Pugh and Harwood claimed that the plaintiff’s action must fail, since the cause of action had arisen after the first day of term, on which (by a fiction of relation) the suit was said to have commenced, the King’s Bench allowed the plaintiff to submit evidence of when his writ had actually been issued to counter the fiction. 65 In other cases where legal fictions determined the timing of legal actions, the courts ignored the fiction where substantial justice required it. As Abbott CJ put it, ‘[i]t is a general rule, that where it is for the interest of the party pleading to shew that a proceeding did not take place at the precise time when by fiction of law it is supposed to have happened, it is competent for him to do so.’ 66 Similarly, the fiction that there was no fraction in a day could be dislodged: thus, where a claimant stated that his ancestor had died at five in the morning, and that he had granted a lease to ‘Richard Roe’ on the same day, the court overruled an objection that the lessor’s title could not accrue until the following day. 67 Parties using ejectment had to take care, however, to ensure that they got the date of the fictitious lease correct: if the lessor claimed to have demised land to John Doe to hold ‘from 24 June’ and alleged that Doe had entered the land on that day and been ejected, this would be fatal, since Doe’s right to enter only commenced on 25 June. 68

What these cases and comments revealed was that the courts were flexible in their use of fictions in order to promote justice. Fictions could be used expansively, to promote justice for a litigant, as well as restrictively, to prevent a third party being harmed. Moreover, the categories of fiction were not fixed, and sometimes courts attempted to juggle more than one fiction. For instance, in Cage v Acton in 1704, the King’s Bench had to decide on the validity of a bond given by a man to his wife before their marriage that he would leave her £1000 in case she survived him. It was settled law that all contracts or debts due between husband and wife were released by the marriage: after all, as Gould J put it, ‘a husband’s owing a thing to his wife is owing a thing to himself, which is absurd.’ However, this judge felt that there should be a remedy for the wife after her husband’s death: ‘the law very often makes a fiction for the preservation of a right; and a suspension of a personal duty is not always an extinguishment…. The rule is, that modus et conventio vincunt legem. The law, by its own operation, will do no wrong; and surely it would be a great wrong to defeat the wife of her provision.’ 69 Chief Justice Holt dissented; but at the end of the century Lord Kenyon endorsed the approach of the majority, in a judgement which lamented the fact that his predecessor ‘had recourse to such flimsy and technical reasonings to enforce a case so directly against law and conscience.’ 70

The use of fictions building on fictions can also be seen in Billon v. Hyde and Michell in 1749. John David Billon was a merchant who had extensive dealings with John Francis Michell, over a long period of time, with long standing running accounts being kept between them. Michell traded extensively in Italy and France, and Billon ‘did very frequently assist [him] with large sums of money on [his] drafts on foreign houses’. 71 Michell committed a secret act of bankruptcy on 18 April 1743, but no commission of bankruptcy was issued against him until 13 November. In the intervening period, he had paid over £3018–2-2 to Billon, while Billon’s accounts showed that he in turn had paid Michell £712 −2–0. Michell’s assignees had sued Billon at common law in an action for money had and received, recovering the full amount that had been paid to Billon, but without setting off the sums due to him on the balance of the accounts. 72 Billon then turned to the Court of Chancery for help. Here, Lord Hardwicke LC was minded to give the claimant relief—not least because a statute had recently passed which would have given him relief, but which was passed too late to benefit him. As he perceived, the common law case had rested on two fictions. The first was the fiction of relation, which vested the bankrupt’s property in his assignees from the time of the first act of bankruptcy. Commenting on this doctrine, Lord Hardwicke noted that it was the rule that fictions should not prejudice anyone, but added that ‘this case is taken out of another general rule, which has been adhered to for the sake of publick utility; viz. that it is better a private mischief should issue, than a general inconvenience.’ 73 The second fiction was the contractual fiction found in the action for money had and received. 74

Lord Hardwicke puzzled over the use of this contractual action. ‘There is no foundation to raise an assumpsit,’ he argued, ‘which must be founded on contract either in fact or in law’. He was clear that ‘there was no contract in fact; for a contract must be with somebody’. Despite his doubts, however, he found a contractual path to give a remedy to Billon, which was to treat the bankrupt as a factor or agent for the assignees from the moment of his bankruptcy. In his judgement, the assignees could not affirm that he had paid over their money, while disaffirming that he had received money from Billon on their behalf. 75 While the Lord Chancellor’s reasoning was not always entirely clear—and in the end the parties were encouraged to come to a settlement—it is evident that he (in contrast to some contemporary common lawyers) treated indebitatus assumpsit as being founded on a proper contractual relationship which had to be identified. 76

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