Collaborate wrote: ↑
Mon Nov 12, 2018 7:49 am
When an advocate makes a submission to a court that the law is X, he/she is asked to back that up by producing a statute or caselaw that supports the submission.
Mitten v Faudrye is a reported case. The ignorance of one poster on this site does not alter that fact. If the opposing advocate wishes to argue against the original advocate's submission they must counter with law of their own - in other words statute or caselaw.
ukmicky has produced nothing. I think that is very telling. I note also on this site he had this argument with TO back in 2010. He's had therefore 8 years to come up with something.
Or they can argue that the case cited did not create a binding precedent and then provide an argument as to why.
They say it’s good to start with a good foundation so here is the boring part first but you can skip to part 2 below which explains not only why mitten v Faudrye the case itself does not create a precedent .It actually has nothing to do with fruit,hedges and the right to enter someone’s land to collect it . It’s a shame people don’t actually read cases before they cite them.
Sorry everyone if you get bored with this as it is long but I need to go indepth to prove my case because collaborate says he is a solicitor and due to that people may hold his opinions up high above all others and also because I didn’t notice a post where I was called ignorant in it. I don't mind people disagreeing with me ,but it should be keep civil and once someone starts calling me names that’s different.
Firstly I fully admit I do not have a law degree. I do have A level law and do receive legal training occasionally as its a requirement of my job as I make decisions that's could cost my employer money or worse bad publicity should I make a wrong decision but I would not in anyway try to place my level of training to be anywhere near that of a law degree.That doesn’t make me ignorant however.
Firstly collaborate keeps saying mitten v Faudrye is a reported case and therefore creates a binding precedent. As a solicitor , if that's what he is he should know there is more required for a reported case to create binding precedent than it simply being reported. The most important aspect of a precedent apart from the case if it is going to be cited is the case report and the quality of information contained within it.. A future court will need to be able to read the judgement and understand the full facts of the case and why the court came to it’s decision. There needs to be a Ratio Decidendi or stare decisis
So lets examine what was actually cited and how much legal weight can be placed on this so called reported case. The full citation of the case is Mitten v Faudrye (1625) poph 161.163: 79 E.R 1259. From the a citation we can see this is a "reported case" and its from a case that came before the Kings bench and if you can read citations we can see from my citation above , I have cited both the original Nominate report from 1625 and the later english report where the old court records are now recorded .
The first potential problem we get legally with this case in respect to how influential it is and whether it can be considered a binding precedent is its age because in over 400 years it’s possible new statatory laws or later decisions in courts of equal status or higher could have overruled its decision . If it did originally create a precedent before it was used in court searches would be made of past and present laws which wouldn’t be easy but would be nessesary as the last thing you would want in court is for the defence to counter with a case you know nothing about.
The second potential problem is there were no actual official law reports
produced between the years 1537 and 1835 which happens to span the period of this case .Now that is not a nail in the coffin but its enough to get the hammer ready to strike because the quality of the reports during those years differed greatly and whilst there were some that could be considered good many were not.
Case reports from diffferent periods of time are given different names . From the citation we can see the letters E.R which means the case report is from what they call the English reports .They are called the English reports as they need to separate them from case reports from before 1537 which they call the year books and the official law reports which started to be produced from 1835 to today.
English reports have another official name and are also called the Nominate reports
they are called nominate reports as they were named after the person who reported or published the case, because E.R English reports were written and held by private individuals . Basically in the days of the nominate /English reports anyone could report a case and anyone did do it .The only ability required was being able to write as there was no professional or legal organisation like the bar council today overseeing or collecting what was being recorded . Which is why there were no official law reports during those years.
Unfortunately due to there being no standards many of the cases were not recorded word for word ,they were not recorded accurately and some were produced from fading memoires many years later . There are also some that were falsely
attributed to be reported by well know court reporters or presided over by respected judges in order to gain more prestige so they could find there way onto the news papers of the time in order to make money .Who made the report in those days was very important as only certain individuals were of a high enough standing for their reports to be totally trusted.
The other problem for any case to create a binding precedent is the Ratio decidendi
(the detailed reason for the decision ) must be recorded in the case notes. Many of these English reports do not contain that detail. ,The court probably did go into the detail at the time but the person recording the case didn't record it as it wasn’t required in those days as most reports were recorded for private collections or publication in news papers.
Law reports were not professionalised until they got their accredited status in 1835 when the bar council got so fed up with the unprofessional inaccurate reporting of cases they set up the Incorporated Council of Law Reporting . In doing so they set standards and from 1835 those new standards created what is now called the official law reports.
Just to show what the situation is with these old reports I've copied below the statement from one of the journals which holds the cases from the Kings bench for the years 1625 to 1627 and Mitten v Faudrye is a Kings Bench Report from between 1625 to 1627
Kings Bench Reports 1625 to 1627
None of the reports of cases from the Court of King's Bench from the first two years of the reign of Charles I is very good, but, on the other hand, none of them is totally useless. Many of these reports have been insulted by later judges, but, as time has gone by, they have been regularly cited, being the best evidence of the law at the time.[/i][/b]
In regards to old cases ,especially those in the E.R reports .Whilst precedential law history can be dated back to before the 12th century there was nothing that forced a court to adopt the common law standards of today . Precedential law (Common law) only come of age after the Judicature Acts of 1873-1875 . Three very important things occurred due to the Act ,the first was the hierarchy of the courts ,which. established decisions from lower courts were not binding on higher courts. The second thing was it brought together common law courts and equity courts under one roof which meant fairness had to be considered along side common law before a decision was made . Before the act they were separate courts and the claimant decided where to take his case and common courts did not consider equity (fairness ) when making their judgements .Lastly the same Act also allowed bad decisions to be challenged on appeal as there was no right of appeal prior to the Act and the Act created what is now called the appeal court.
Due to the Judicature Act any case that came before it, even if it was once considered a binding authority lost some of its it authority as fairness (equity)was not a consideration when the original judgement was made in a common court and secondly because there was no right of appeal where bad decisions could be challenged.
Now if you wish you can totally ignore all the above ,I just thought it would be good to provide a bit of history which can all be checked,
The case Mitten v Faudrye itself is not a good example of a case to use as evidence of a binding precedent. I will explain why.
Remember you have been told the below by collaborate
Mitten v Faudrye was a 17th century case decided by Mr Justice Popham. Its reference is Mitten v Faudrye, 79 ER 1259 (1626). This is a law report. If you question whether this case, which is still referred to today, is a legal precedent, you should not be posting advice on a legal website. It’s basic stuff
The first thing he got wrong in his statement above was when he said the case was decided by Justice Popham
. it wasn’t Justice Popham because justice popham was already in his grave when this case was heard . I can understand why collaborate thinks its Justice Popham as I know why he went wrong but as he says I’m ignorant what does that make him. As a solicitor he should not make such a basic error. Imagine standing up in court and making such an error. I will explain more later.
So everyone stay with me
Don't you think its weird if this was a binding case there would be many future cases after Mitten v Faudrye in 1625 right up to to today where the judgement in Mitten v Faudrye was cited and the decision in Mitten v Faudrye was the deciding factor in the future judgement. Granted its been mentioned here and there in a few cases and there are books like the Law of trees which has a reference to it and there are even a few other legal journals mainly from other countries that mention it but not one case has been won that I can find since Mitten v Faudrye due to the decision in Mitten v Faudrye .
There are several good reasons why that is the case.
The historical report citation from the nominate report from the time of the case is Mitten v Faudrye (1625) poph 161.163. and contains in the citation the name of the person who reported or published the case ,not the judge who presided over it.
The English reports do that as its important to know who reported or published the case due to the years these reports are from as a well known and respected person increased the authority of the report.
From the citation above you can see the letters ''poph'' which tells us who the person who published or reported the case in mitten v Faudrye ) was Justice Popham who was actually a very well known and highly respected judge.He was actually the judge in the case for those who they tried to blow up parliament. Without him in theory we would have no Guy Fawkes night.
Unfortunately for Justice Popham however he didn’t live until the year 1625 , he died in 1609, 16 years before the actual case mitten v Faudrye . Remember I previously mentioned about falsely attributed English report cases by famous people
. So not only is collaborate wrong when he says the case was heard by Justice Popham ,the actual legal citation is also wrong as the original case report has been falsely been attributed to him.
If you were to read the official journal that contains all of justice Popham "reported cases" they actually say all his reported cases post 1609 from page 120 onwards even though in the citations it says he reported the cases ,they could not have been by him and were therefore falsely attributed to him due to his death 1609 and the names of people who reported the cases are therefore unknown.
That on it own calls into question if the report in Mitten v Faudrye is good enough to create a binding precedent as the E.R report can no longer be trusted if the person cited as reporting or publishing had nothing to do with it and the actual person who was responsible is unknown .However there is worse to come.
Lets now get to the actual case,
So looking at what has been posted previously you would think in the actual case of Mitten v Faudrye the judge ruled in the favour of a neighbour going onto his neighbours land to collect his fallen fruit and then famously came out with the ruling and words.
''If a tree grow in an (sic) hedge, and the fruit fall into another man's land, the owner may fetch it in the other man's land ''
Well believe it or not he didn’t ,no one did.
You may be surprised to find out Mitten v Faudrye had nothing to do with fruit and hedges. I've posted the actual pleading of the defendant below in the actual words of the case judge reported
to be justice Doderidge (not Popham)..
The defendant pleaded the sheep were trespassing upon his land, and he with his little dog chased them out, and as soon as the sheep were out of his land he called in his dog, but thus ; I chase the sheep of another out of my ground , and the dog pursues them into another man’s land next adjoining and I get my dog and the owner of the sheep brings trespass for chasing of them .
So why all the confusion ,how can people get it so wrong.
Looking at most of the references out there where they mention those words above most of the references seem to have been replicated from one source that originally got it wrong .
The words ''If a tree grow in an (sic) hedge, and the fruit fall into another man's land, the owner may fetch it in the other man's land '' were mentioned in the case as they looked at the history of trespass and mentioned references to trespass from previous court cases and books. One of the references was to Bracton where the words are written and bracton is the actual original source. For those who don’t know ,Bracton was a clerk and a book was published by him in the early 13th century containing mostly the writing of William Rielly about the law and customs in England .
It contains what he believed should be the laws of the land taken from ancient roman law and ffrom other peoples views in books like Leges Edwardi Confessoris. His book did influence the law but was not the law
and he only wrote what he believed the law should be under hypothetical circumstances. No cases are cited for those hypothetical circumstances. There is no Ratio Decidendi or stare decisis ,its all personal beliefs .
It seems however there are people out there who publish things like books ,without checking out what they are actually citing and there are also many people who read something on the internet and believe it without performing proper research first.
Sorry if there are a few typos.
Any information provided is not legal advice and you are advised to gain a professional opinion