Civil Laws

The view of Salmond, civil law is “the law of the state or of the land, the law of lawyers and the law of the courts”,. Civil law is the positive law of the land or the law as it exists. Like any other law, it is uniform and that uniformity is established by judicial precedence. It is noted for its stability because its without that, it would be nothing but the law of the jungle. 

It is enjoyed by the person who inhabit a particular State which commands obedience through the judicial processes. It is backed by the force and might of the state for intentions of enforcement. Civil law has an imperative character and has legal sanction behind it. It is essentially of territorial nature. It applies within the territory of the state concerned. It is not universal but general. It creates legal rights, whether fundamental or primary. It also creates secondary rights. 

 Any infringement of law is always attendants with attachments, fine or imprisonment, or some, other form of punishments which the society inflicts on the wrong-doer in order to show its displeasure against the person who violates the law. The term Civil law is derived from jus civile or civil law of the Romans. It s not so popular today today as it used to be. The term positive law has become more popular than civil law. Sometimes the term municipal law is used in place of civil law .

Holland prefers to use the term positive law and writes thus , “A law in the sense in which that term is applied in jurisprudence, is implemented by a sovereign political authority. It is thus distinguished not only from other rules which , like the precepts of morality and the so called laws of honour and of fashion are enforced by an undetermined authority,, but also from all rules enforced by a definitive authority which s either , on the one hand , godlike or on the other hand , politically dependant. In order to stress the fact that laws, in the strict view of the term, are thus authoritatively imposed, they are described a positive law.

However, Salmond prefer to use the term civil law instead of positive law and detects “the term civil law, as indicating the law of the land, has been particularly superseded in recent times by the improper replace, positive law ….... It is not permissible , therefore to limit positive law to the law of the land. All law is positive that is not natural ….”

Public Rights

A public right is owned by every member of the public. When one of the persons associated with the right is the state and the other is a private person, the right is called is a public right A private right is connected only with individuals . 

 Both the parties associated with the right are private persons. Private right are of infinite variety and are enjoyed by individuals who happens to own certain property, who run a certain office, who enter into a contract. Public and private right differ in the same way as public and private rights are differ. 

According to Blackstone “ Wrongs are divisible into two shorts or species , private wrongs and private wrongs. The former are an infringement or privation of the private or civil rights belonging to individuals and are thereupon frequently termed civil injuries , thee latter are a breach and violation of public rights and duties which affect the whole community considered as a community and are distinguished by the harsher appellation of crimes misdemeanours .” 

However Salmond indicated that all public wrongs are not crimes. The breach of a public trust is a public wrong but the method of redress is a civil one . Moreover, all crimes are not public wrongs. Many minor offences can be punished at the instance of private person.

Proprietary and personal Rights

The proprietary rights of a person include his estate , his assets and his property in various forms. Proprietary rights have some economic or monetary value. Examples of proprietary rights are the rights to debt, thee right to goodwill, the right to patent,etc. 

Proprietary rights are valuable but personal rights are not valuable. Proprietary rights are the element of the wealth of a man. Personal rights are merely elements in his well-being. Proprietary rights possess not merely judicial but also economic importance. Personal rights possess merely judicial importance. The distinction between proprietary and personal rights is not confined to rights in the strict sense of the term but applies to other classes of rights as well . 

The estate of a person is made up not merely of his valuable claims against other person but also of such of his powers and liberties as are either valuable in themselves or are accessory to other rights which are valuable. A general power of appointment is proprietary but the making a will or a contract personal. A liability to be sued for a debt is proprietary but a liability to be prosecuted for a crime is personal. 

The duty of fulfilling a contract for the purchase of goods is proprietary , but the duty of fulfilling a contract to marry is personal. The status of a person is made up of his personal rights , duties , liabilities, and disabilities. The same person may have at the same time the status of a free man., a citizen, a husband, a father, etc. 

When we speak of the status of a wife , we refer to all her personal benefits and burden arising out of marriage. In the same way , when we speak of the status of a alien , a lunatic or an infant. The true test of a proprietary right is not whether it can be alienated but whether it is equivalent to money. It may be equivalent to money although it may not be possible to sell if for a price. 

A right to receive money or something which can itself be turned into money , is a proprietary right and is to be counted as a part of the estate of the possessor although the same way not be alienable.

Possessory remedies

Possessory remedy are those which exists for the protection of possession even against ownership. Propriety remedies are those which are available for the protection of ownership. In various legal systems possession is provisional or temporary title even against the true owner. Even a wrongful possessor who is deprived of his possession can retrieve it from any person whatsoever on the ground of his possession. Even the true owner who recaptures his own , must first repair possession to the wrongdoer and then proceed to ensure possession on the ground of his ownership. There are many grounds why possessory remedies are recognized.

1. Possession often amounts to evidence of ownership. A finder of goods becomes the owner against the whole world excluding the true owner. This is on the ground that he is in possession of it. If a person in adverse possession of a property for 12 or more years , he becomes the legal owner of the property and the right of the original owner extinguished.
   
   
2. The iniquities of violent self help are very serious and in all civilized countries, those are forbidden . Experience shows that there can be better conditions in society if the role of force is avoided by the real owners. Lawful methods are always to be favored and no one should take the into his own hands .
   
   
3. Another reason of possessory remedies is to be available in the serious imperfection of early proprietary remedies. Those were cumbersome, dilatory and inefficient . Every claimant had to undergo many hardships. The attitude of the plaintiff was a very difficult one and no persons to be allowed to occupy the advantages position of the defendant. It was under these circumstances that it provided that the original state of affairs must be restored first. Possession must be given to him who had it first and then it alone the claims of the various persons could be settled. Under the old legal systems, it was extremely hard to prove one's ownership and regain the property on the ground of title. Very often, small technicalities led to the defeat of one's title to property.
   
   
4. Another reason for possessory remedies is that it is always more hard to establish ownership than to prove possession. Hence it is not just that a person who has taken possession of property by means of violent activities should not be allowed to transfer the big burden of proof from his own shoulders to that of his opponent. He who takes a things by force must restore it and he is free to prove that he is the owner.

Ownerless rights

There is no any unanimity of opinion as to whether every right have an object or not. According to Salmond , an ownerless right is an impossibility. There can not be a right without a subject to whom it inheres any more than there can be weight without a heavy body ; for rights are merely attributes of persons and can have no independent existence. 

The object of law is to protect the person in the exercise and enjoyment of a particular right and not to protect a right in itself . A right can not exists in vacuum . A right may be held of a determinate individual or by the public at large. Although every right has an owner , it need not have a vested and certain owner. The fee example of a land may be left by will to a person who is unborn to at the time of the death of the testator. The ownership of the land is contingent on the birth of the child. Sometimes the question arises as to who is the owner of a debt in the interval between the death of the creditor intestate and the vesting of his estate in an administrator. 

According to Roman law , the right contingently belong to the heir but they are for the time being vested in the inheritance by virtue of its fictitious personalty. The fictitious personality was that of the deceased and not of the future heir . At present neither the Roman or the English fiction is necessary. There is no difficulty in saying that the estate of the intestate is presently own by a incentra prsona or by the person who is subsequently appointed its administrator. 

There are some writer who are in the opinion that there are rights without objects. According to them , the objects of a rights means some material things to which it relates. In this sense , an object is not an essential part of a right as in the case of a husband having a right in respect of his wife or a father having a right in respect of this children. They deny that the right of reputation or personal liberty or the right of a patent of copyright has any object at all.

Kinds of legal persons

There are three kinds of legal persons .

1. A corporation is an artificial or fictitious person constituted by the personification of a group or a series of individuals. The individuals making the corpus of the corporation are called its members. A corporation is either a corporation aggregate or a corporation sole. Three definitions are necessary for the existence of a corporation. There must be a group or body of human beings linked for certain purposes. There must be organs through which the body or the group acts. A will is attributed to a corporation by a legal fiction. The corporation is distinguished from the individuals from the individuals who constitute the corporation. A corporation has a personality of its own which is different from the personalities of the individuals. A corporation can sue and be sued. Even if a members of the corporation dies , the corporation continues. A corporation is accepted by law as permanent and continuous legal entity. It is not affected by the deaths of its members. A corporation can enter into contracts with its members as it has a personality distinct from that of the members. A corporation can have property , rights and duties. Unlike natural persons , a corporation can act only through its agents. It does not die in the way natural person die. Law provides special procedure for the winding up of a corporation.
   
   
2. In some cases, the corpus or the object personified is not a group or succession of individuals but an institution itself. Examples of institution are a college, church , library, mosque , hospital , an idol etc.
   
   
3. In some cases, the corpus and the object personified is some fund or state reserved for a particular purpose . Examples of this kind of legal persons are property of a dead man , the estate of an insolvent, a fund for charity, an estate under a trust , etc. According to Roman law, the estate of a dead person was regarded has having a legal personality by the notion of hereditas jecents till it was vested in the legal heirs . Likewise the Stiftung, an uncorporated fund for the charitable functions, was vested with rights and duties and was itself personified.

Essentials features of a corporation

Reference may be made to the essential features of a corporation. A corporation has in law a different existence and personality from that of its members or shareholders. Its personality is fictitious . The incorporation of a firm bring about a fundamental change in its legal position. It comes to be invested with a personality with its own. The distinction between a corporation and its members is fundamental. 

The property of a corporation is not considered to be the property of the shareholders. No shareholder can claim that a particular part of the property of a corporation belongs to him. Likewise, corporation can not lay any claim to the properties of a shareholder. The shareholders of a corporation may be perfectly solvent but the corporation may become insolvent. 

As a corporation has a separate personality and existence of its own, there is no difficulty in a member entering into a contract with the corporation. A corporation can survive the last of its members. It does not die with the death of its shareholders. The law of a country lays down the conditions according to which a corporation can be brought into existence and also ended. 

The successor of a shareholder does not become a shareholder. He has to get himself registered as such. If he does not do so , he does not automatically become a shareholder. It is possible that one shareholder may purchase all the shares of the rest of the shareholders. In this way he can become as the sole shareholder. In case he dies and his successor or successors do not register themselves as shareholders , the company continues to exist even without a shareholder.

Corporation and natural personal

There is also a fundamental distinction between a corporation and natural person. A natural person is born as a result of the working of law of nature and also dies in the same way. However, when a corporation has to be created , an application has to be made to some office set up for that purpose by law. In the case of joint stock company , the application is made to the Joint Stock Companies. 

A corporation can also be created by means of a Royal Charter of an Act of parliament. This was done n the case of the English East India Company. In the same way the municipal corporations can be set up. A corporation also comes into existence by prescription. The same is the case with regard to the dissolution of corporation. 

A corporation can be declared defunct when it stops doing its business. Its charter can be forfeited. It can voluntarily surrender its charter or the privileges granted to it. A natural person can act himself . It is not binding on a natural person to get his work done through others. 

However, in the case of a corporation , it is absolutely essential that it must act through its agents. Moreover a natural person can do whatever he pleases .There is no restriction on what he can do and what he can not do. However in the case of a corporation, its powers are defined in the instrument when the corporation is created. 

A limited company can not go beyond the terms of its memorandum of association. Even if all the shareholders of a company agree , they can not do a thing which is beyond the terms of the memorandum of association. However the memorandum of association itself can be changed.

Agreement

According to Sir John Salmond, an agreement is also a source of law . He said “ That an agreement operates a source of rights is a fact too familiar to require illustration.” If X and Y enter into an agreement which is a lawful one , the courts of law recognize that agreement and enforce the same on X and Y . The same is the case if A and B enter into a agreement with a lawful purpose . However, such agreement bind only the parries to the parties not to the others. 

Law is a rule of conduct and generality is the test of law. There is no generality in an agreement between two parties. An agreement is recognized so long as t exists, and when it is dissolved , it has no farther effect. Agreement plays an important part in international law . There may be an agreement among number of State to follow particular procedure with regard to a certain matter . 

The States entering into the agreement are bound by that . If the agreement is continued for a long time by a large number of States , it acquires the force of a custom and thus custom is born as a source of International law. That's why Keeton Says , custom in a source of international law , but agreement never it so; agreement is merely is a source custom and then if a number of other agreement exist compelling uniformity of conduct of the States who are parties to them. 

The process of municipal law is the same. A number of agreements concluded in the same way and enforcing similar courses of conduct on the parties to them may cause a custom to grow. But it is the custom and not the agreement which is always the source of law.

Status of unborn person

Though the death person posses no legal personality, the case is otherwise in case of unborn child. There is nothing in law to forbid a man from owing property before he s born. His ownership is contingent as he may never be born yet but it is a real and present ownership. 

A man may settle property upon his wife and his unborn children to be born of her. Even if he dies intestate, his unborn child will inherit his estate. However many restrictions have been imposed in this connection . No testator can direct his fortune be accumulated for a hundred years and then distribute among his descendants. A child in the womb of his mother is for many purposes regarded by the legal fiction as already born. In the words of Coke, “The law in many cases hath consideration of him in respect of the apparent expectation of his birth.” To what extent an unborn person can possess personal and proprietary rights is a somewhat unsettled question . 

It has been decided that a posthumous child is ennobled to compensation under Lord Campbell;s Act for the death of his father. Willful or negligent injury inflicted in the child in the womb , by reason of it dies after having been born alive , amounts to murder or manslaughter. A pregnant woman condemned to death is respited as of rights until she has been delivered of her child. 

The rights of a unborn children , whether proprietary or personal , are all depends on his birth as a living human being. The legal personality assigned to him by way of anticipation falls away ab initio if he never takes his place among the living . Abortion and child killing are crimes but such acts do not amount to murder or manslaughter unless the child is born alive before he dies. 

A posthumous child may inherit , but if he dies in the womb or is still born , his inheritance does not take effect and no one can claim though him The case will be differently if he lived for a hour after his birth . If some of the beneficiaries of trust are unborn persons , the trust can not be varied without obtaining the consent of the court on their behalf .

Possession in fact and in law

Possession is divided into two categories , viz. Possession in fact and possession in law. Possession in fact is actual or physical possession. It is a physical relation to a thing. Possession in law means possession in the eye of law. It means a possession which is recognized and protected by law. There is sometimes a discrepancy between possession in fact and possession in law, although usually possession has existence both in fact and in law in the same person. A person who is in de fecto possession of a thing also falls to have de jure possession. 

However sometimes possession may have existence in fact and not in law. If a servant holds certain things in his custody on behalf of the master , he has the actual possession of those things but in the eye of law, the possession is with the master. In certain cases , possession may exists in law and not in fact. This is so in the case of constructive possession. 

A tenant may be occupying a particular building but the land lord has the constructive possession of the same. The same is the case with the things in the possession of servants , agents and bailees. The fundamental element both in possession in fact and in law is the same . The element is the possibility of excluding every person other than the possessor. From the use or control of the thing. According to Keeton “ possession in fact and possession in law are not invariably coterminus , although very frequently they are.” The Roman lawyers made a distinction between possession in fact as possessio naturalis ans possession in law as possessio civilis. 

In consequence of this divergence , partly intentional and avowed and partly accidental and unavowed between the law and fact of possession, it is impossible that any abstruct theory should completely harmonise with the detailed rules to be found in any concrete body of law. Such harmony would be possible only in a legal system which has developed with absolute logical rigour , undisturbed by historical accidents and unaffected by any of those special considerations which in all parts in the law prevent the in flexible and consistent recognition of general principle.

Methods of Transfer of possession

Transfer or acquisition of possession can be done in three ways viz, by taking by delivery and by the operation of law.

1. As regards the acquisition or transfer of possession by taking , it is done without the consent of the previous possessor . This also may be done in two ways . One is called for the rightful taking of possession and the other the wrongful taking of possession. A shopkeeper is entitled to get some money from a customer and the shopkeeper takes possession of thee things of the customer. This is an example of the rightful taking of possession. If a thief steal something from an individual his acquisition of possession is wrongful. However a person captures a wild animal which does not belong to anybody , the possession is called original.
   
   
2. Another wy of acquisition of possession is by delivery or traditio. In such a case , thing is acquired with the consent and cooperation of the previous possessor. Delivery is of two kinds , actual and constructive. In the case of actual delivery immediate possession is given to the transferee . There are two categories of actual delivery . According to one category the holder retains mediate possession and according to the other the holder does not retain mediate possession. If I lend a book to somebody I retain the mediate possession of the book but if I sell the same , I do not retain the mediate possession. Constructive delivery is that which is not direct or actual . There are certain things which can not actually be transferred by the owner to the purchaser or by the transferor to the transferee. In such cases, constructive delivery alone is possible. There are three kinds of constructive delivery . And those are traditio brevi manu, constitutum possessorium and attornment. In the case of traditio brevi manu possession is surrendered to one who has already immediate possession. In such a case , it is only the animus that is transferred as the corpus of possession is already with the transferee. I have already lend a book to somebody , if I sell the same book to him, it is a case of traditio brevi manu. In the case of constitutum possessorium it is only the mediate possession that is transferred and the immediate possession is retained by the transferor. I may sell my car to somebody but I may retain the physical possession of the same for some time in spite of the payment of price to me. In such a case the animus is lost and I keep the car on behalf of the purchaser. It is to be observed that on all cases of constructive delivery , there is a change of animus alone and corpus of possession remains where it was alone.
   
   
3. Transfer of possession can be made by the operation of law as well. This happens when , as a result of law , possession changes hands. If a person dies , the possession of his property is transferred to his successors and legal representatives .

Legal wrong

Salmond says that a wrong is simply a wrong act- an act opposit to the rule of right and justice .A synonym of it is injury , in its true and primary sense of injuria ( what which is contrary to jus ) though by a modern perversion of meaning this term has gained the secondary sense of harm or damage whether rightful or wrongful and whether inflicted by human agency or not. On the other hand Pollock says that wrong is in moral the contrary of right. Right action is that which moral rules prescribe or commend , wrong action is that which they prohibit . For legal purposes anything is wrong which is prohibited by law. There is wrong done whenever a legal duty is breached . A wrong may be reported in the largest sense , as anything done or omitted contrary to legal duty, regarded in so far as it gives rise to liability. Hence the being of duty, as it involves right , demands also the possibility , though we know too well that all rules are in fact sometimes breached . Duty right and wrong are not separate or divisible heads of legal rules or of their subject matter , but different legal aspect of the same rules and events. There may be duties and rights without any wrong , this happens whenever legal duties are justly or truly fulfilled. There can not of course be a wrong without a duty already being , but wrong also create new duties and liabilities. Strictly speaking therefore , there can be no such thing as a distinct law of wrongs. By the law of wrongs wee can mean only the law of duties , or some class of duties , regarded as exposed to infraction , and the special rules for awarding redress or punishment which come into play when infraction taken place . There is not on law of rights or duties and another law of wrongs. Nevertheless there are some kinds of duties which are more conspicuous in the breach than in the observance. The natural end of a positive duty is performance . A thing has to be done , and when it is duly done the duty is , as we say , discharged ; the man who was lawfully free. We contemplate performance , not breach. Appointments to officers are made or ought to be , in the expectations that the persons appointed will adequately fulfill their official duties . Wrongs are of two kinds , legal and moral . The essence of a legal wrong is that it is a violation of justice according to the law not the manner in which the guilty are treated. It is a legal wrong if a debt is not paid within the period of limitation. A moral wrong is an act is an act which is morally or naturally wrong . It is contrary to the rule of justice. It is a moral rule to disobey one's parents . A legal wrong need not be a moral wrong and vice versa.

Importance of possession

Possession is one of the most important concepts in the whole range of legal history. Holland said it as the ascertainment of the nature of legal possession is , in fact , indispensable in every department of law. It is as essentials of determination of international controversies arising out of the settlement of new countries , or to the conviction of prisoner of larceny, as it is to the selection of the plaintiff in an action of trover or trespass. Many important legal consequences flow from the acquisition and loss of possession. Possession is the prima facie evidence of the title of ownership. Transfer of possession is one of the chief modes of transforming ownership. The first possession of a things which as yet belongs to no one., is a good tittle of right. Possession is so important that a possessor may in many cases confer a good title on another even though he has none himself. If property is already owned , its wrongful possession is a good tittle for the wrongdoer as against all the world except the true owner. In Hanna vs Peel , the plaintiff was serving in the Royal Artillery . He was stationed in a house requisitioned by the government and he accidentally found a brooch in an upstairs room occupied by him. The brooch was handed over to the police. The police were not able to find out the rightful owner and delivered it to the defendant who was the owner of the house. The defendant sold the jewel . A suit was brought for recovery of the brooch or its jewel. The plaintiff claimed the jewel as the finder . The contention of the defendant was that he was entitled to it as the owner of the property on which it was found. The defendant was never in possession of the house and had no knowledge of the brooch until it was brought to his notice. It was held that the defendant had neither de fecto control nor the animus of excluding others and as such no possession. The plaintiff was entitled to the brooch or its value since his claim as finder prevailed over all but the rightful owner.

Duty

Salmond said that A duty is a obligatory act that is to say , it is an play opposite of which would be a wrong . Duties and wrongs are correlated . The commission of wrong is the violation of a duty and the performance of a duty is the avoidance of wrong. Duties are of two kinds legal and moral . 

A legal duty is an act recognized as duty by law and considered as such for the administration of justice. A moral and natural duty is an act the opposite of which is a moral or natural wrong . A duty may be moral but not legal , or legal but not moral , or both at once. 

In the case of England there is a legal duty not to sell od have for sale adulterated milk knowingly. There is no legal duty in England to abstain from offensive cuiosity about one's neighbours even if its satisfaction does them harm. There is a moral duty but not a legal duty .There is both a legal and a moral duty not to steal. 

Duties my be negative or positive . When the law compels to do a act , the duty is called positive .When the law obliges us to forbear from doing an act , the duty is negative . If R has a right to a land , there is a corresponding duty on persons generally not to interfere with his exclusive use of the land. Such a duty is a negative duty. It is eliminated only if the right itself is extinguished .

If S owes some of money to Y , the later is under a duty to pay the amount due. This is a positive duty. In the case of positive duties , the execution of the duty extinguished by fulfilment. Duties can also be primary and secondary . Primary duties are those which exist per se and independently of any other duty . 

An example of primary duty is to forbear from causing personal injury to another .A secondary duty is that which has no independent existence but for the enforcement of other duties. An ellustration of a secondary duty is the duty to pay a amn harms for the injury already done to his person. It is also called a remedial , restitutory or sanctioning duty.

Development of the concept of Possession

As in the case of ownership , the concept of possession also has grown gradually in the course of many centuries. As civilization began to progress , the people started taking possession of certain objects and thus the idea of ownership began to grow up. 

The struggle for existence was so bitter that individuals began to take possession of certain objects and considered them as their own. They began to take pride in the possession of those things and were not prepared to allow outsiders to interfere with them. They were determined to exercise continuous control to the exclusion of all others. From a humble beginning , the concept of possession and ownership began to grow and much progress has been made in this connection. 

A differentiation has to be made between jus possidendi or the right of possess. Jus possessionis is the right of the possessor to continue to possess. It is a right to remain in possession except against a person who has better title. Even a robber has the right of possession and only the true owner can interfere with his possession. If I give something to may servant to be kept in custody on my behalf , he has physical possession of the thing but he has no legal right to it. He has the jus possessionis and not jus possidendi . 

This is due to the fact that my servant has merely the corpus of possession and not the animus or the intention of exercising control over it.

Decisions of silentio

In some cases the court may make no pronouncement on a point regard to which there was no argument and yet the conclusion of the case as a whole assumes a conclusion with regard to the particular point. Such decisions are said to pass sub silentio and they do not establish a precedent. As regards exceptions to the doctrine of stare decisis, Professor Rupart Cross writes that even if a court would be bound by a particular decision in the ordinary way, that decision need not be followed if the court is House of Lords, if it conflicts with a previous decision of the same court, if it has been impliedly overruled by the the subsequent decision of a higher court, if it is reached per incuriam, if the court is the court cout of appeal and the previous decision was made on a interlocutory appeal , if perhaps it conflicts with a previous decision of a higher court, notwithstanding the fact that the decision was considered by the court which decided the case in question , which case accordingly can not be said to have been resolved per incuriam, if perhaps the previous decision is obsolete , if the previous decision is obscure, out of accord with authority of established principle , or too broadly stated , in this cases the decision but not the ratio decidendi is binding , if perhaps the cases has two rationes decidendi in which case a choice may be made between them and if perhaps the effect of thee case has been reversed by statute , its ratio decidendi need not be followed.

Custom and Prescription

When a thing practiced for a long time , its gives rise to a rule of law known as custom , but if it gives rise to a right, it is called prescription. A custom is a source of law but a prescription is a source of right . For example in a certain community of a particular locality , a daughter has priority over collaterals the third or remoter degree from time immemorial . It is a local custom and it gives rise to a rule of law . 

If X and his forefathers have from time immemorial been grazing cattle on a particular land belonging to Y , it gives rise to a right a right in X and it is called prescription. On account of their similarity , local custom and prescription were both bracketed under the heading of particular custom and prescription was regarded as a branch of custom. Prescription was considered as a particular custom confined to an individual. 

Both local custom and prescription require the same essentials to be valid. However at present local custom and prescription are clearly distinguished as there are prescriptive rights which do not show any similarity to local custom. The rule regarding time immemorial has been replaced in the case of prescription. Uninterrupted enjoyment for 20 years is considered to be enough to acquire the right to light and air. 

Custom is based on long usage but prescription is based on lost grant and operates as a source of right. A custom must be reasonable and conform to justice , public policy and utility, but that is not necessary n the case of prescription. Custom is a generally observed course of conduct and has the force of law on account of long usage. Prescription means the acquisition of a right or title by user or possession in the manner laid down by law. 

 Local custom relates to a particular locality or the members of a particular class . It is lex loci . Prescription is personal and applies to persons. While custom must be ancient , prescription only requires a period of 20 years.

Co-ownership and Joint ownership

Co-ownership may assume different forms. Its two chief kind in English law are distinguished as ownership in common and joint ownership. The most crucial differences between these relates to the results of death of one of the co-owners. If ownership is common the right of a dead man descends to his successors like other inheritable rights , but on the dying of one of two joint owners , his ownership ends with him and the survivor turns the sole owner by virtue of his right of survivorship or jus accrescendi . If a property belongs to X and Y in equal shares and if it is a case of ownership in common , half the property will pass to the heir of X on his death and the other half will remain with Y . However if the X and Y are joint owners Y would be titled to the whole property and the heirs of X would get nothing. Each owner in common are interested in a part or a share but not in the whole of the property. Common ownership is familiar in Hindu law. Joint ownership in the English law type is rather foreign to Hindu law and the presumption usually made where the grantees are Hindus. Is that they hold in common . The joint ownership is familiar to Hindu is special kind of which the joint holding by the members of an undivided Mitakshara joint family is the type. The distinguishing feature of a Mitakshara coparcenary is the right of survivorship possessed by its members. It resembles the joint tenancy of English law . However, a Mitakshara coparcenary is liable to be enlarged by the birth of a male issue copercenars . Invested with a right by birth , the male issue also becomes a copecener .This feature is absent in the joint ownership of English law.

Civil Liability:

Civil liability is the enforcement of the right of the plaintiff against the defendant in civil proceedings. Criminal liability is the liability to be punished in a criminal proceeding. A civil liability gives rise to a civil proceedings whose purpose is the enforcement of certain rights claimed by the plaintiff against the defendant. Examples of the civil proceedings are action for the recovery of a debt. Restoration of property , the specific performance of contract , recovery of damages , the issuing of an injunction against the threatened injury, etc. It is possible that the same wrong may give rise to both civil and criminal proceeding. This is so in cases of assualt , defamation , theft and malicious injury to property. In such cases the criminal proceeding are not alternative proceeding but concurrent proceeding. Those are independent of the civil proceedings. The wrongdoer may be punished by imprisonment. He may be ordered to compansate to the injured party. The outcome of proceeding of civil and criminal liability are generally different. In the case of civil proceeding , the remedy is in the form of damages. A judgement for the payment of a debt , an injunction , specific performance , delivery of possession of property, a decree of divorce. The redress for criminal liability is in the form of punishment which may be in the form of imprisonment, fine or death. In certain cases , the remedy for both civil and criminal liability may be the same . In certain cases , imprisonment may be awarded both in the cases of civil and criminal liability . Even in a civil case, if a party dares to defy an injunction , he can be imprisoned. Civil liability is measured by the magnitude of the wrong done but while measuring criminal liability we take into consideration the motive , intention, character of the offender and the magnitude of the offence.

Animus possidendi:

Animus possidend or the subjective element in possession is the intend to appropriate to oneself the exclusive use of the thing possessed. The animus possidendi is the witting intention of the individual to exclude other from the control of an object. There are certain aspects of animus possidendi which have to be considered.

1. animus possidendi is not necessarily a arrogate of right. It may be consciously unlawful . The thief has possession no less real than that of the true owner.
   
   
2. The claim of the possessor need to be exclusive . He must aim to exclude other person from the use of the thing possessed. A mere intend or claim of use can not amount to the possession or the material thing itself. However the exclusion need not be absolute . Anyone may posses his land notwithstanding the fact that some other body or the public at large posses a right of way over it. Subject to this right of way , the animus possidendi is still a claim to the exclusive use or control of the land.
   
   
3. The animus domini need not amount to a claim or intent to use the as owner . A tenant or borrower may have possession. Any degree or form of intended use or control , however limited in level or in duration, may , if exclusive for the time being , be sufficient to constitute possession. The animus possidendi need not be a claim to the use of the thing at all as in the case of a pledge or a bailee with a lien. 
   
   
4. The animus possidendi need not be a claim on one's own behalf. A servant , agent or trustee , may have true possession though the claims exclusive role or control of the thing on behalf of another.
   
   
5. The animus possidendi need not be determined but may be merely general . A general intention with respect to a class of things is sufficient (if coupled with the necessary physical relation) to confer possession of thee individual object belonging to that class even though their individual exercise is unknown . A fisherman is in possession of all the fish secured in his net. Similarly , I posses all the books in my library even though I may have forgotten the existence of many of them.

On The Way ( Effective Adocacy II )

11. Use themes. Find themes that relates to the elements of your case or the characteristics of your

client that arouse natural sympathy or coincide with universally admired principles. It is especially

helpful if you can come up with a clever title for your theme. E.g.,

a. David and Goliath -- if you represent an individual against a large corporation.

b. Fighting city hall -- if you represent a person who has been the victim of inflexible

policies of government bureaucracies or the unreasonable decisions of faceless officials.

c. Caught in a sea of red tape -- if you represent a small business trying to comply with

contradictory and arbitrary regulations and laws.

d. Law and order -- if your case is weak on sympathetic factors, but your client's actions

were legally justified.

12. Use chronological order. It’s going to be hard enough for the jury to follow your case without

you jumping around from witness to witness, back and forth in time.

13. Use illustrations. Long recitations of facts and information are boring and hard to keep straight,

so use both visual aids and literary allusions. Jurors may have trouble envisioning what the crime

scene looked like if your detective just describes it, but they’ll remember the crime scene photos

(especially if the corpse is still lying there). They may not remember all the details of your argument

that an opposing expert witness's opinions are purely subjective, but they’ll remember the story of

Goldilocks and the three bears. Anything that you can reduce to a drawing, chart, or computer

simulation should be presented that way.

14. Use language carefully. Use words that personalize your witnesses and depersonalize your

opponent's, e.g., you represent Jackie Reynolds, organist at the First Methodist Church, being sued by

some doctor who got a dent in his Mercedes. Think whether what happened was an accident, a wreck,

a rear-end collision, or a melee. Note that what is important here is the choice of noun, not adjective.

A “horrible, tragic accident” is still just an accident.

15. Be professional. Wear a dark suit. Be formal rather than informal. Have good posture. Be

respectful of others in the courtroom at all times, especially the judge and jurors. Stand when the

judge or jury enters or leaves the room. Address the judge as "your honor" and all jurors and

witnesses by their last names.

16. Have a personality. This is not inconsistent with professionalism. You can be professional and

courteous of others without becoming a boring, wooden stick or a trial robot. Tell a story, recite a

poem, wear a rose in your lapel, and laugh when something funny happens. Be human.

17. Use as few notes as possible. This is not the same thing as using no notes at all.

18. Watch your voice. Your voice is important -- try to be a good actor. Speak clearly. Vary your

pace, pitch and loudness. Keep up the pace of your speech, without letting it get so fast the jury

cannot follow you. Slow, dull, monotonous speech is boring.

19. Always remember that the case is about facts, not law. The jury doesn’t care about the legal

technicalities, and neither should you. A trial is about who did what to whom, why did they do it,

what happened, and why it is unjust.

20. Always take the high road. Don’t take cheap shots. Don’t appeal to racial or ethnic prejudice.

Avoid sarcasm. Don’t attack the personal credibility of your opponent. Try not to be rude, abrasive,

or obnoxious.

21. And never, ever, use a lectern. This isn’t an appellate argument.

On The Way ( Effective Advocacy )

1. Make it brief. Long-winded advocates are boring.

2. Need to be positive. Stress on the strengths of your case, rather than the weaknesses of your opponent's.

Take a firm stand and stick to it don’t hesitate. No creacking.

3. Be clear about what you want. If you want the jury to give your client $2 million dollars, you have

to ask them for it. If you want them to ignore the alibi testimony given by the defendant’s brother,

you have to be clear. You can’t just say, “Well, he’s his brother ........”

4. Keep it simple. Concentrate on the five or ten most important facts in your case. If you can

simplify your case, edit your presentations, and keep the jury focused on your main points, resisting

the temptation to go off on less important tangents, you will present the jury with a case they can

understand and remember. Use simple language rather than legalese.

5. Provide details. This is not inconsistent with simplicity. Simplicity means concentrating on the

main issues and ignoring the rest. Being precise and detailed means going beyond the testimony that

the defendant was drunk, and eliciting from your witness a full description of the defendant as

belligerent, shouting, falling down, spilling his beer, having blood-shot eyes, reeking of alcohol,

stumbling, dropping his car keys four time, and singing off-key Irish songs.

6. Provide motives. Don’t just say that someone did something, say why. This is another kind of

detail. It means that when a witness says she is pretty sure an accident happened at 2:55 pm, ask how

she knows. Elicit that she had just checked her watch because she was caught in traffic and had to be

at the school at 3:00 to pick up her daughter.

7. Use the rule of threes. If it’s important, do it three times. The baby didn’t just die, he suffocated,

turned blue, and died. And it wasn’t just a preventable tragedy, it was inexcuseable, a preventabale

tragedy that wouldn’t have happened if simple precautions had been taken. It’s not just the

breathalyzer that proves the defendant was drunk, the arresting officer and eyewitnesses corroborate

it.

8. Start strong. Psychologists have confirmed what our mothers always told us: first impressions are

important. Therefore, the first thirty seconds of each phase of your trial -- your opening statement,

each direct and cross-examination, and your closing argument -- are critical times when you should

focus on something you especially want the jury to remember.

9. End strong. The last thing jurors hear is also important. Have a big finish. The final thirty

seconds of each phase of your trial -- opening statement, each direct and cross-examination, and your

closing argument -- are also critical times in which you should focus on something you especially

want the jury to remember.

10. Admit your weaknesses. Every case has weaknesses, e.g., witnesses with unsavory backgrounds

or evidence that defies common sense. You cannot ignore these problems; weaknesses do not just go

away. You cannot explain them away, but you can disclose them yourself in a way that makes them

appear trivial. Psychologists have shown that you will usually be more persuasive if you bring out

both sides of an issue yourself than if you adopt the "used-car-salesman" approach of trying to hide

obvious points of vulnerability. But don’t dwell on them.

On The Way ( Effective Advocacy )

1. Make it brief. Long-winded advocates are boring.

2. Need to be positive. Stress on the strengths of your case, rather than the weaknesses of your opponent's.

Take a firm stand and stick to it don’t hesitate. No creacking.

3. Be clear about what you want. If you want the jury to give your client $2 million dollars, you have

to ask them for it. If you want them to ignore the alibi testimony given by the defendant’s brother,

you have to be clear. You can’t just say, “Well, he’s his brother ........”

4. Keep it simple. Concentrate on the five or ten most important facts in your case. If you can

simplify your case, edit your presentations, and keep the jury focused on your main points, resisting

the temptation to go off on less important tangents, you will present the jury with a case they can

understand and remember. Use simple language rather than legalese.

5. Provide details. This is not inconsistent with simplicity. Simplicity means concentrating on the

main issues and ignoring the rest. Being precise and detailed means going beyond the testimony that

the defendant was drunk, and eliciting from your witness a full description of the defendant as

belligerent, shouting, falling down, spilling his beer, having blood-shot eyes, reeking of alcohol,

stumbling, dropping his car keys four time, and singing off-key Irish songs.

6. Provide motives. Don’t just say that someone did something, say why. This is another kind of

detail. It means that when a witness says she is pretty sure an accident happened at 2:55 pm, ask how

she knows. Elicit that she had just checked her watch because she was caught in traffic and had to be

at the school at 3:00 to pick up her daughter.

7. Use the rule of threes. If it’s important, do it three times. The baby didn’t just die, he suffocated,

turned blue, and died. And it wasn’t just a preventable tragedy, it was inexcuseable, a preventabale

tragedy that wouldn’t have happened if simple precautions had been taken. It’s not just the

breathalyzer that proves the defendant was drunk, the arresting officer and eyewitnesses corroborate

it.

8. Start strong. Psychologists have confirmed what our mothers always told us: first impressions are

important. Therefore, the first thirty seconds of each phase of your trial -- your opening statement,

each direct and cross-examination, and your closing argument -- are critical times when you should

focus on something you especially want the jury to remember.

9. End strong. The last thing jurors hear is also important. Have a big finish. The final thirty

seconds of each phase of your trial -- opening statement, each direct and cross-examination, and your

closing argument -- are also critical times in which you should focus on something you especially

want the jury to remember.

10. Admit your weaknesses. Every case has weaknesses, e.g., witnesses with unsavory backgrounds

or evidence that defies common sense. You cannot ignore these problems; weaknesses do not just go

away. You cannot explain them away, but you can disclose them yourself in a way that makes them

appear trivial. Psychologists have shown that you will usually be more persuasive if you bring out

both sides of an issue yourself than if you adopt the "used-car-salesman" approach of trying to hide

obvious points of vulnerability. But don’t dwell on them.