XXXIX 



:^7 



was kept out of possession down to the present time. The plain- 

 tiff's wife made some imputations, in the course of her evidence, 

 on the conduct of defendants and their comrades, in aggravation of 

 the trespass, to the effect that her box had been broken open and 

 some money taken from it, and that some of her furniture had been 

 broken ; and she also spoke of a threat to burn down the house if 

 she did not leave it ; but, as I stated yesterday at the close of the 

 case, I did not think the imputations sufficiently borne out to be 

 entitled to credit. They were denied by Mitchell ; they were 

 not corroborated, as they might have been, if true, by other testi- 

 mony ; and I had no evidence that any complaint had been made 

 at the time, of the loss or destruction of the money or goods. A 

 question arose in the course of the case, whether the Lieut. -Gov- 

 ernor was a •' Collector " within the meaning of the Act 16 of 1839, 

 and another, whether the notice was in accordance with the 3rd 

 section, as it did not require the plaintiff " to engage for or remove 

 from " the land ; but in the view which I take of the main question 

 in the case, viz., whether the plaintiff is one of those " cultivators or 

 tenants holding by prescription," who are excepted from the pro- 

 visions of the Act by the 12th section, it is not necessary that I 

 should express any opinion on them. 



The term " prescription " does not apply in English law, as 

 Mr. Davidson justly observed, to land, but only to incorporeal 

 hereditaments, such as rights of way, common or light ; and if the 

 term were construed in its strictly technical sense, it would find no 

 application to cultivators of land. We had no statute of limita- 

 tions in this country, relating to land, until 1859, and if " prescrip- 

 tion " were to be understood as referring to a title to land acquired 

 by long occupation, the section in question would find little or no 

 application here, because the title acquired by the cultivators and 

 tenants in Malacca does not depend on any statute or law of limita- 

 tions. But there is another sense in which the term may have 

 been used, viz., in the sense of " custom," and in this sense it 

 would make the section so widely and justty applicable to the cir- 

 cumstances of this Settlement that it appears to me beyond doubt 

 that it is in this sense that the Legislature used it. 



" Prescription," properly so called, is personal ; it is the title 

 acquired by long usage by a particular person and his ancestors, or 

 the preceding owners of the estates in respect of which the right 

 is so acquired. A " custom " is also established by long usage, but 

 unlike prescription it is " local " not personal ; when once establish- 

 ed, it becomes the law of the place where it prevails, to the exclu- 

 sion of the ordinary law ; and those who have a right under it, have 



