Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/535

 16. BOW EN: THE VICTORIAN PERIOD 521 been forcibly and wrongly ejected by Richard Roe, and had in consequence begun an action of trespass and ejectment against him. Richard Roe, meanwhile, being a " casual ejector " only, advised the real defendant to appear in court and procure himself to be made defendant in the place of the indifferent and unconcerned Richard Roe, otherwise the de- fendant would infallibly find himself turned out of posses- sion. Till within the last twenty-six years, this tissue of invention of unreal persons and of non-existent leases pre- ceded every investigation of the claim to possession of land. Nor was the trial itself of a common law cause productive of certain justice. Right was liable to be defeated by mis- takes in pleading, by variances between the case as previously stated upon paper and the case as it stood ultimately upon the evidence, or by the fact that the right party to the suit had not been nominally joined, or that some wrong party had been accidentally joined with him. Perhaps the most serious blemish of all consisted in the established law of evidence, which excluded from giving testimony all witnesses who had even the minutest interest in the result, and, as a crowning paradox, even the parties to the suit themselves. never induce any rational belief.' The merchant whose name was forged to a bill of exchange had to sit by, silent and unheard, while his acquaintances were called to offer conjectures and beliefs as to the authenticity of the disputed signature from what they knew of his other writings. If a farmer in his gig ran over a foot-passenger in the road, the two persons whom the law singled out to prohibit from becoming witnesses were the farmer and the foot-passenger. In spite of the vigorous efforts of Lord Denman and others, to which the country owes so much, this final absurdity, which closed in court the mouths of those who knew most about the matter, was not removed till the year 1851. In a strictly limited number of cases the decisions of the three courts could be reviewed in the Exchequer Chamber — a shifting body composed of alternate combinations of the judges, and so arranged that selected members from two of the courts always sat to consider such causes as came to
 * The evidence of interested witnesses,' it was said, ' can