The plaintiffs are the executors of one Yong Nee Chai who purchased No. 19 Cross Street, Kuala Lumpur, in 1905. It was originally a one-storied house. Adjoining it was No. 21 Cross Street which appears to have been built subsequently to No. 19. At some period before 1910, No. 19 was converted into a two storied house, and for this purpose the outside wall of the top storey of No. 21 was utilised. The defendant acquired No. 21 in 1936. It was then held under three Certificates of Title which were surrendered in 1938, and one Certificate was issued to the defendant (Exhibit P3). About the beginning of 1939 defendant demolished No. 21, and as a result of the removal of the wall adjoining No. 19, and of the excavations which caused one of the brick piers of No. 19 to slip, No. 19 became unsafe for habitation, and the Sanitary Board obtained an order for its demolition.

So far the facts are not in dispute. The plaintiffs also allege that in removing the wall the defendant trespassed on the plaintiffs' land to the extent of a few inches. With this allegation I will deal later. The plaintiffs claim that after thirty years' or more user they have a right of support which has been infringed by the defendant. Alternatively they claim damages for trespass.

The trial took place before the learned Chief Justice who held that, if English law were applicable, the plaintiffs would be entitled to succeed. He found, however, that, in view of the provisions of the Land Code the Common Law of England could not be applied. He also found that the alternative claim in trespass had not been established. The plaintiffs' claim was accordingly dismissed, and they have appealed.

Principles of English Law have for many years been accepted in the Federated Malay States where no other provision has been made by statute (see for instance, Motor Emporium v Arumugam 13 SSLR 39. Section 2 (i) of the Civil Law Enactment, therefore merely gave statutory recognition to a practice which the Courts had previously followed. The material parts of the section read as follows:

"Save in so far as other provision has been or may hereafter be made by any written law in force in the Federated Malay States, the Common Law of England, and the rules of Equity, as administered in England at the commencement of this Enactment, other than any modifications of such law or any such rules enacted by Statute, shall be in force in the Federated Malay States; Provided always that the said Common Law and rules of Equity shall be in force in the Federated Malay States so far only as the circumstances of the Federated Malay States and its inhabitants permit and subject to such qualifications as local circumstances render necessary."

It will be seen that there are three qualifications to the adoption of the English Common Law in the Federated Malay States:

(1) It only applies if there is no other statutory provision in the F.M.S.

(2) If it applies, it applies unmodified by any English Statute.

(3) It must be applied only so far as the circumstances of the Federated Malay States and its inhabitants permit, and subject to such qualifications as local circumstances render necessary.

The first of these qualifications will be considered later in connection with the Selangor Land Regulation of 1891, the Registration of Titles Enactment of 1911 and the Land Code of 1926.

As regards the second qualification, comparison may be made with the application of the English Common Law to the Colony, where by virtue of the Charters the English Common Law applies with such statutory modifications as existed in 1826. So far as concerns the matters in issue in this action, the result is that the Prescription Act of 1832 applies neither in the Federated Malay States nor in the Colony.

The third qualification appears to me to be of considerable importance when the presumption of a lost grant comes to be considered. If the rule of the Common Law is that there must have been an actual grant, e