Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/234

 220 //. FROM THE llOO'S TO THE 1800'S ment, said : " No argument can be drawn in the present case from internal evidence ; we must therefore refer to the rules of the Civil law." Similarly in interpreting the language of alleged trusts, the rules of the civil law are referred to.^ Re- mains of the Roman doctrine of beneficium inventoris are traced in the time of Charles I., when an executor who had not exhibited an inventory was charged with a legacy after 20 years. ^ In the case of legacies for publi c uses Lord Thur- low said that the cases " had proceeded upon notions adopted from the Roman and Civil laws, which are very favourable to charities, that legacies given to public uses not ascertained shall be applied to some proper object."^ And the same is true of charitable trusts.^ But these rules were sor.^etimes applied with more zeal than discretion, as when Sir R. Arden, M. R., afterwards Lord Alvanley, entirely misunderstood the meaning of exceptio doli.^ But Mr. Spence's remark that land from the time of Agricola to the present day " ^ shows too great a faith in the persistence of a highly developed system of law through centuries of barbarism. The jurisdiction of the Chancery over Infants ^ is very similar to that exercised over guardians by the Roman Praetor, but Mr. Spence is not able to say more than that the Corpus Juris " has been occasionally consulted. If not resorted to as an authority " on the subject. We have al- ready noticed Lord Macclesfield's preference for the Civil law rule as to the persons who should be guardians as compared to that of the Common law.^ The Chancery jurisdiction over idiots and lunatics is also similar to that of the Praetor and may very possibly have been derived from t. The English Law of Partnership is derived from three sources, the Common Law, the Lex Mercatoria, and the Roman Law.^^ Of the Lex Mercatoria we need only say here • Knight v. Knight, 3 Beav. 161, 172. » Spence, i. 585, citing Tothill, 183: 15 Car. I., which appears a wrong « White V. White, 1 Br. Ch. C. 15. * Spence, i. 587. • Kennett v. Abbott (1799), 4 Ves. 808. ' Spence, i. 523 note. ^ Spence, i. 606-615. • V. supra, p. 130. • Spence, i. 618-620.
 * ' probably the same law as to legacies has continued In Eng-
 * • Collier on Partnership, Lond. 1840, p. 1.