Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/745

 ^0. VEEDER: A CENTURY OF JUDICATURE 731 Whenever it was sought to prevent a threatened injury, to preserve the subject matter of litigation intact, or to discover documents, the common law was compelled to resort to equity to support even a legal claim. In consequence of its recognized incapacity for the determination of questions of fact, the court of chancery, in turn, constantly availed itself for such purposes of the assistance of the common law courts. The three ancient superior courts of common law flour- ished side by side, although by various devices they had gradually acquired concurrent jurisdiction over personal actions. The Court of King's Bench still maintained juris- diction of civil and criminal cases alike, and had supreme authority over all inferior tribunals with its weapons of mandamus and prohibition. The Court of Common Pleas retained jurisdiction over the remaining forms of real ac- tion, and the Court of Exchequer still retained in revenue, equity and a few other matters a separate jurisdiction. Notwithstanding the pressure of a rapidly increasing vol- ume of litigation, these courts, in accordance with an anti- quated system, sat during only four short terms of three weeks each. Their procedure was based upon the system of special pleading, which, however admirable as a species of dialectic, inevitably promoted excessive technicality and ab- sorption in mere forms. A system which based its claims to consideration upon its precision, it was nevertheless honey- combed with fictions. Just claims were liable to be defeated by trivial errors in pleading, by infinitesimal variances between pleading and proof, and by the absence or presence of merely nominal parties. The arbitrary classification of actions was another pitfall into which the most wary some- times fell. If a surprise occurred at nisi prius, the court was unable to adjourn the proceedings a single day. And, as a crowning paradox, a fundamental rule of evidence ex- cluded absolutely the testimony of all witnesses who had the remotest interest in the result. " The rules of evidence were so carefully framed to exclude falsehood that very often truth itself was unable to force its way through the barriers thus created."