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- Imprisonment for Debt.
- Legal fiction?
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Book Description tredition, This book is printed on demand. Seller Inventory I Section 6 3 of the Indian Income Tax Act, , provides an alternative easy test for determination of residence of a company: "A company is said to be resident in India in any previous year, if it is an Indian Company or during that year, the control and management of its affairs is situated wholly in India. Similarly, in North American broadcasting, a radio or television station has a legal city of license which does not necessarily correspond to the location of its studios or the market that the station's programming is intended to serve.
The doctrine of survival is also an example of legal fiction. If two people die at the same time or in a manner that renders it impossible to tell who had died first, the older of the two is considered to have died first, subject to rebuttal by evidence demonstrating the actual order of death. A similar albeit more complicated legal fiction involved pleadings in the common law action of ejectment by which title to real property was tried.
The common law had a procedure whereby title to land could be put in direct issue, called the " writ of right". One inconvenience of this procedure, though, was that the defendant at his option could insist on trial by "wager of battle", that is trial by combat , a judicially sanctioned duel. Most plaintiffs were unwilling to stake life and limb on the hazard of the battle, so the procedure fell into disuse.
Rather, an elaborate tale was told in the pleadings, about how one John Doe leased land from the plaintiff, but was ousted by Richard Roe, who claimed a contrary lease from the defendant.
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These events, if true, led to the "assize of novel disseisin", later called the "mixed action in ejectment ", a procedure in which title could ultimately be determined, but which led instead to trial by jury. This is the origin of the names John Doe , Richard Roe , and so forth, for anonymous parties. The fiction of Doe, Roe, and the leases was not challenged by the parties unless they wished to stake their life and safety on a trial by combat. Wager of battle was in fact not abolished in England until , though it fell into disuse by the end of the thirteenth century.
In England a simple legal fiction extended the jurisdiction of the Court of the Exchequer to all types of cases involving debt.
The Exchequer was originally a court that had a specialized jurisdiction involving taxes and other obligations to The Crown. The Court had only slight jurisdiction in regards to private matters between litigants. The Exchequer therefore had a much lighter caseload than the King's Bench and other courts in England. Litigants who commenced an action in the Exchequer Court on a debt, therefore, had to plead that they owed money to the King , which they could not pay because their debtor had in turn wrongfully withheld payment to them.
It came to pass that the debt owed to the King became a legal fiction in that the original debtor was not entitled to controvert this allegation in order to oust the Exchequer from jurisdiction. The litigant, by using this artifice against the debtor, could bring his case into a court with a substantially lesser caseload.
The Bill of Middlesex was a legal fiction used by the Court of King's Bench to gain jurisdiction over cases traditionally in the remit of the Court of Common Pleas. Hingeing on the King's Bench's remaining criminal jurisdiction over the county of Middlesex , the Bill allowed it to take cases traditionally in the remit of other common law courts by claiming that the defendant had committed trespass in Middlesex.
Once the defendant was in custody, the trespass complaint would be quietly dropped and other complaints such as debt or detinue would be substituted. Another legal fiction involves resignation from Parliament in the United Kingdom. In a rule was declared that said that Members of Parliament were given a trust to represent their constituencies, and therefore were not at liberty to resign them. In those days, Parliament was relatively weak in comparison to the 21st century, and service was sometimes considered a resented duty rather than a position of power and honour. However, an MP who accepted an "office of profit" from the Crown including appointment as a minister was obliged to leave the House and seek re-election, it being feared that his independence was compromised if he were in the King's pay.
Therefore, the device was invented that the MP who wished to quit applied to the King for the post of " Steward of the Chiltern Hundreds " or " Steward of the Manor of Northstead " with no duties or income, but legally an office of profit in the King's gift nonetheless.
Debt: The First Pages
The requirement for ministerial re-election has been abolished, but the "Chiltern Hundreds" mechanism has been retained to enable MPs to resign. The elaborate fiction about poor Doe left homeless by Roe has been abolished by statute or by reforms in civil procedure in every common law jurisdiction. The business about Doe and Roe being the guardians of undisclosed parties who wish to bring suit, or the names of parties unknown, remains in some jurisdictions although not in England.
The doctrine of survival, although still existing in England, has been abolished in many U. Also, legal fictions have been invalidated as being contrary to public policy , as, for example, in the High Court of Australia 's rejection in the Mabo cases of the doctrine of terra nullius , the legal fiction that there were no property rights in land in Australia before the time of European colonization. Henry Maine argued that legal fictions seem an ornate outgrowth of the law that ought to be removed by legislation.
Jeremy Bentham sharply criticised the notion of legal fictions, saying that "fictions are to law what fraud is to trade. William Blackstone defended them, observing that legislation is never free from the iron law of unintended consequences. We inherit an old Gothic castle, erected in the days of chivalry , but fitted up for a modern inhabitant.
The moated ramparts , the embattled towers, and the trophied halls, are magnificent and venerable, but useless. The interior apartments, now converted into rooms of convenience, are cheerful and commodious, though their approaches are winding and difficult. In the novel Joan and Peter by H. Wells , Peter's parents die in a sailing accident. As it is not known which parent dies first, a legal fiction is applied maintaining that the husband, being a man and therefore stronger, lived longer. This decision results in the father's will determining Peter's legal guardian. However, later in the novel a witness to the accident declares seeing the mother floundering some time after the father has disappeared, and so the legal fiction is overturned and the mother's will is followed, providing Peter with a new legal guardian.
Wells was in fact in error as to the English law, which instead presumes that the older person died first. In Act II, Scene 1 of Gilbert and Sullivan 's The Gondoliers , Giuseppe Palmieri who serves, jointly with his brother Marco, as King of Barataria requests that he and his brother be also recognized individually so that they might each receive individual portions of food as they have "two independent appetites".
He is, however, turned down by the Court made up of fellow Gondolieri because the joint rule " In the novel Lud-in-the-Mist by Hope Mirrlees , the concept of the legal fiction as a secular substitute for spiritual mysteries and magical illusions is a central theme. Legal fictions in the novel include referring to fairy fruit, mention of which is taboo, as woven silk fabric in order to allow the law to regulate it; and declaring members of the country's Senate "dead in the eyes of the law" in order to remove them from office, since the senators serve for life.
Legal fictions derive their legitimacy from tradition and precedent, rather than formal standing as a source of law.
Historically, many legal fictions were created as ad hoc remedies forged to meet a harsh or an unforeseen situation. Conventions and practices over the centuries have imparted a degree of stability both to the institution of legal fictions and to specific legal fictions such as adoptions and corporate personhood that have been repeatedly invoked in judicial precedents. While judiciaries retain discretion in the use of legal fictions, some general propositions regarding the appropriateness of using legal fictions might be expressed as follows:.
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Fact assumed or created by courts which is then used in order to apply a legal rule. Not to be confused with legal drama , legal thriller , or police procedural. This article may require cleanup to meet Wikipedia's quality standards. The specific problem is: More structure and coherent narrative required Please help improve this article if you can.
January Learn how and when to remove this template message. Main article: Legal personality. See also: Simultaneous death. Main article: Writ of Quominus.
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- Debt: The First Pages.