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husband, it was held that as the transaction related to immovables, her capacity with reference to the particular transaction was governed by the law of the Transvaal and there having been no properly executed renunciation of the benefits of the SC. Velleianum1 and the Authentica si qua mulier,2 by which, under Roman Law, women were disabled from undertaking obligations of suretyship and married women were specially prohibited from binding themselves as sureties for loans to their husbands, the agreement could not be enforced against her.

In Re Johnson, Roberts v. Attorney General,3 an interesting case raising the doctrine of the Renvoi, the law of Malta was applied in dealing with the succession to movables situate in England, and undisposed of by the will of the deceased, who had died domiciled in Baden, it being proved that by the law of Baden the succession was governed by the national law of the deceased, and Malta being the domicile of origin.

The majority of cases of this second class are cases raising questions of personal capacity or succession to property.

3. The third and most prolific class of cases in which questions of Roman Law may arise includes appeals from the Scotch Courts to the House of Lords and cases coming before the Judicial Committee of the Privy Council on appeal from South Africa, Ceylon, and other jurisdictions, in which the codes in force have a large element of Roman origin (e.g. Quebec, Mauritius, St. Lucia). These cases are very numerous, and we here refer only to a few of the more important.

In the recent case of Cantiare San Rocco S.A. v. Clyde Shipbuilding and Engineering Co., on appeal 2 (A.D. 556), Nov. 134, c. 8.

1 (A.D. 46), Dig. 16. 1.

3 [1903] I Ch. 821. The decision has been much criticised, but on grounds not affecting its application in this connection.

[1924] A.C. 226.

from the First Division of the Court of Session in Scotland, the House of Lords, after hearing, as the writer of a recent article in the Law Quarterly Review expresses it, "an argument, much of which might have been addressed to a Court of the later Roman Empire," decided that the condictio causa data causa non secuta, in the form of the action of restitution, is part of the law of Scotland. It is of interest to Cambridge men to note that reference was made in the course of the argument to Professor Buckland's recent Text-Book of Roman Law.

The action arose out of a contract by which the respondents agreed to make and deliver to the appellants some marine engines, the first instalment of the price, amounting to £2310, having, in accordance with the terms of the contract, been paid to the respondents on the signing thereof. Owing to the outbreak of war in 1914, the appellants being enemy subjects, performance of the contract became impossible, and after the conclusion of peace they brought an action for repayment of the sum already paid. The House of Lords held that the Law of Scotland, following the Roman Law, is at variance with the English Law as laid down in the Coronation cases, and that the appellants were entitled to recover what they had paid, subject to any counterclaim the respondents might establish in respect of expenses incurred in preparations for carrying out the contract. Lord Shaw, in an exhaustive and instructive judgment,3 reviewed the Roman, Scottish and English authorities on the subject, pointing out the arbitrary and unsatisfactory nature of the English rule as applied in the Coronation cases. He expressed himself as follows: "Thus the rule, admitted

1 F. P. Walton, K.C., in L.Q.R. for July, 1925, p. 307.

2 Chandler v. Webster and Girling [1904] 1 K.B. 493; Krell v. Henry [1903] 2 K.B. 1740.

3 [1924] A.C. at p. 249 et seq.

to be arbitrary, is adopted because of the difficulty, nay, the apparent impossibility, of reaching a solution of perfection. Therefore leave things alone: potior est conditio possidentis. That maxim works well enough among tricksters, gamblers, and thieves. Let it be applied to circumstances of supervenient mishap arising from causes outside the volition of parties; under this application innocent loss may and must be endured by one party, and unearned aggrandisement may and must be secured at his expense to the other party. That is part of the law of England. I am not able to affirm that this is any part, or ever was any part of the law of Scotland. No doubt the adjustment of rights after the occurrence of disturbances, interruptions, or calamities is, in many cases, a difficult task. But the law of Scotland does not throw up its hands in despair in consequence, and leave the task alone."

Such is the trenchant criticism of a distinguished Scotch Judge of that narrow particularism which characterises so many of the decisions of our Courts.

Strickland v. Strickland,1 an appeal to the Privy Council from a decision of the Maltese Court, raised some interesting questions involving the application of Roman Law. The main point in issue was whether the appellant had forfeited an estate, coming to him by fideicommissary substitution under a family settlement, through failure to assume the name of "Bonici," as required by an appointment made by a power exercised in pursuance of the settlement in question. On this point, reference was made to Dig. 36. 1. 65. 10, Si vero nominis ferendi condicio est, etc., and the decision was that the condition was not warranted by the power and therefore there was no forfeiture, but that, in any case, probably, on the Roman authorities, failure to comply with it would not involve forfeiture.

1 [1908] A.C. 551.

A further question raised in this case, but as pointed out by Sir J. H. de Villiers, who delivered the opinion of the Judicial Committee, not actually involved in the issue before the Court, was the construction of a section of the Code of Rohan (1784), which restricts the duration of a fideicommissum to the fourth grado. The rule of Maltese Law is that where the provisions of the Code fail to apply, or are ambiguous, recourse must be had to the Common Law of Malta, i.e. Roman Law. It was argued for the respondent that the fourth grado is the fourth substitute, or actual possessor, regardless of relationship. For the appellant it was contended that the fourth grado means the fourth generation, whether obtaining possession or not, and that all the principal authorities on this part of the law of fideicommissa support this view. This view had already been upheld by the Judicial Committee in a previous case from Malta, D'Amico v. Trigona.1 The question involved the interpretation to be placed on the 159th Novel of Justinian. On this Sir J. H. de Villiers observed: "The Novel itself is so verbose and the reasoning upon which it is founded is so loose, that it is not surprising that the commentators thereon arrived at conflicting conclusions as to its true meaning and import.

The law affecting fideicommissa, involving reference to the Corpus Juris, has been a frequent subject of discussion in cases before the Privy Council on appeal from the Courts of South Africa and Ceylon. Galliers v. Rycroft,3 Josef v. Mulder, and Samaradiwakara v. De Saram are instances.

In Douglas v. Sander & Co. the operation of the actio doli in Roman Law was discussed at some length.

1 (1888) 13 App. Ca. 806.

2 For a discussion of this Novel, see Buckland, Text-Book of Roman

Law, pp. 359-360, and Equity in Roman Law, pp. 83-91.

3 [1901] A.C. 130 (Natal).

5 [1911] A.C. 753 (Ceylon).

[1903] A.C. 190 (Cape Colony).

6 [1902] A.C. 437 (Natal).

In Jayawickreme v. Amarisariva1 the much discussed question of the relation of the Roman notion of causa to the English doctrine of valuable consideration came before the Privy Council, and it was held that consideration in the English sense is not essential in Roman-Dutch Law to the enforceability of a promise deliberately made. The Appellate Division of the Supreme Court in South Africa has arrived at the same conclusion in the leading case of Conradie v. Rossouw.2 In Mackellar v. Bond, the renunciation of the benefit of the SC. Velleianum and Authentica si qua mulier in the case of contracts of suretyship by married women was discussed. In the RomanDutch Law there must be a specific and express renunciation both of the one and the other to be effective.4

Cases involving questions of Roman Law as to liability for tort are not likely to be of frequent occurrence in the supreme Appeal Courts, but, in 1902, the compatibility of the principle of Rylands v. Fletcher, with the Roman law of damage to property, was discussed in the case of The Eastern and South African Telegraph Co, v. The Cape Town Tramways Co.

It would be impossible within the limits of space assigned to these essays, and it has not been our purpose, to make any attempt at a complete survey of cases containing Roman elements. It is hardly necessary to emphasize the importance of a familiar acquaintance with the Corpus Juris as part of the intellectual equipment of any one intending to engage in the practical administration of the law in those jurisdictions, such as South Africa, in which the Roman jurists may still be vouched to warranty. 1 [1918] A.C. 869 (Ceylon).

2 S.A.L.R. [1919] Appellate Division 279.

3 (1884) L.R. 9 App. Ca. 715 (Natal). 4 Per Lord Watson, at p. 717.

[1902] A.C. 381.

5 (1868) L.R. 3 H.L. 330.

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