Scc. 9. Fee-simple-Fine and Recovery-Waste."Mrs. Page. The spirit of wantonness is, sure scared out of him; if the devil have him not in fee-simple, with fine and recovery, he will never, I think, in the way of waste, attempt us again."1

The thought here expressed is, that unless the devil himself owned Falstaff, by the highest estate known to the law, by acknowledgment of record, in court, his punishment had been sufficient to prevent, or dissuade him from his desire to commit further spoilation. A fee simple estate is defined to be "a freehold estate of inheritance, free from conditions and of indefinite duration." It is the highest estate known to the law and is absolute, so far as it is possible for one to possess an absolute right of property in lands.3

The common law proceeding by fine and recovery was an amicable proceeding in court, by which one of the parties litigant, acknowledged, of record, that the lands in controversy belonged absolutely to the other.1

Waste is any unlawful act of spoilation or destruction done or permitted to lands or other corporeal hereditaments, to the prejudice of the reversioner or lawful owner." It may consist in either diminishing its value, in increasing its burdens, or in destroying or changing the evidences of title to the inheritance. Regarding the object of his passion, as the inheritance of her husband, it can not well be doubted that if Falstaff had accomplished his purpose, the value of such "inheritance" would have been correspondingly diminished; her burdens increased and the rights of the husband violated.

1 Merry Wives of Windsor, Act IV, Scene III.

* Tiedeman, R. P. (3d ed.) 29; 2 Bl. Com. 106; 1 Preston, Est. 420; 1 Washburn, R. P. 51; Litt. Sec. 1.

Tiedeman, R. P. (3' ed.) Sec. 29; Plowd. 557; Atk. Conv. 183; 2 Bl. Com. 106.

349.

Bacon, Abr. Fine & Recoveries; Coke, Litt. 120; 2 Bl. Com.

'Tiedeman, R. P. (3' ed.) Sec. 60; 4 Kent's Comm. 316; Coke, Litt. 53b; Bacon, Abr. Waste; 2 Rolle, Abr. 817.

G

2 Bl. Com. 281; Huntley vs. Russell, 18 Q. B. 588.

In Comedy of Errors, the following colloquy occurs between Dromio and Antipholus: "Dro... There's no time for a man to recover his hair, that grows bald by nature.

Ant. May he not do it by fine and recovery?

Dro. Yes, to pay a fine for a peruke, and recover the lost hair of another man." (Act II, Scene II.)

Commenting on this verse, Mr. Cushman K. Davis, in his "Law in Shakespeare," has this to say: "This is a lawyer's pun and would never have occurred to anyone but a lawyer. There is also here a very abstruse quibble in the use of the words, 'recover the lost hair of another man,' for the effect of a fine and recovery was to bar not only the heirs upon whom the lands were entailed, but all the world." Davis' Law in Shakespeare (2nd ed.), p. 133.

In King John (Act II, Scene I), Constance said to Elinor: "Draw those heaven-moving pearls from his poor eyes; which heaven shall take in nature of a fee."

In Troilus and Cressida, Thersites speaks of the Fee-simple of the tetter, as follows:

"Ther.

incurable bond-ache, and the rivalled fee-simple of the tetter; take and take again, such preposterous discoveries." In delivering his curse upon Patroclus, Thersites intimates that he has the "tetter," or a disease of the skin, for life and as a hereditament, to transmit to his posterity, if he has any. In other words, he has such disease by the highest and best title, i. e., by a fee-simple holding. (Act V, Scene I.)

In Romeo and Juliet, Benvolio and Mercutio speak of the feesimple of the former's life, as follows: "Ben. An I were so apt to quarrel as thou art, any man should buy the fee-simple of my life, for an hour and a quarter. Mer. The fee-simple.

O simple."

Kent advises the King, in King Lear: the fee bestow upon the foul disease."

(Act III, Scene I.)

"Kill thy physician, and (Act I, Scene I.)

The Captain tells Hamlet, in referring to the war to recover the land of Fortinbras:

"Cap. We go to gain a little patch of ground,

That hath in it no profit but the name.

To pay five ducats, five, I would not farm it;
Nor will it yield to Norway, or the Pole,

A ranker rate, should it be sold in fee."

(Act IV, Scene IV.)

The maid described how she had given her lover the best she had, in A Lover's Complaint:

"My woeful self, that did in freedom stand,

And was my own fee-simple, not in part,
What with his art in youth and youth in art,
Threw my affections in his charmed power,
Reserved the stalk and gave him all my flower."

(143, 147.)

CHAPTER IV.

"TWELFTH NIGHT.”

Sec. 10. Exceptions-Improper conduct.
11. Proof-Admission against interest.
12. Misprison.

13. Sheriff's post.

14. Misdemeanors.

15. Grand-jury.

16. Windy side of the law.

17. Action of battery.

18. Party plaintiff.

Sec. 10. Exceptions—Improper conduct.—

"Mar. By troth, Sir Toby, you must come in earlier o' nights; your cousin, my lady, takes great exceptions to your ill hours.

Sir To. Why, let her except, before excepted.

Mar. Ay, but you must confine yourself within the modest limits of order."

This verse refers to the method of trial adopted to preserve the errors of the trial court, for the review of the higher court. As errors occur— or a litigant fails to confine himself "within the modest limits of order," an exception is noted on the records of the trial court, and, at the conclusion of the trial, or within a time fixed by the court, these various errors are presented and signed by the trial judge, as a bill of exceptions, upon which the errors of the trial court are reviewed on appeal. Bills of exception were authorized by Statutes in England, in an early day and the practice obtains in the United States to the present day.

'Twelfth Night, Act I, Scene III. '8 East 280; Bouvier, Law Dict. Westm. 2nd (13 Edw. 1) c. 31.

Iago tells Roderigo, in Othello: "Give me thy hand, Roderigo: Thou hast taken against me, a most just exception; but, yet I protest, I have dealt most directly in thy affair." (Act IV, Scene II. (

Sec. 11. Proof-Admission against interest.

"Oli. Make your proof.

Clo. I must catechise you for it, madonna; good my mouse of virtue, answer me.

Oli. Well, sir, for want of other idleness, I 'bide your proof.

Clo. Good madonna, why mourn'st thou?
Oli. Good fool, for my brother's death.
Clo. I think, his soul is in hell, madonna.
Oli. I know his soul is in heaven, fool.

Clo. The more fool you, madonna, to mourn for your brother's soul, being in heaven.-Take away the fool, gentlemen."

The proof by which the clown here establishes the fact attempted to be proven is by that method of proof known as securing an admission against interest. To prove a fact is to determine or establish, by competent evidence, that such fact exists or does not exist." The proof adduced here comports to the proper method of establishing a fact in a court of justice, for after the premise and argument of the fact to be established, the strongest proof is the admission against interest, for this kind of proof, because it is against the interest of the party making the admission, carries the strongest probative force.3 After admitting that her brother's soul was in heaven, the conclusion is drawn that none but a food, would mourn, and thus the fact is established that the mistress is a fool, by her own admission.

'Twelfth Night, Act I, Scene V.

'Ayliffe, Parerg. 442; Greenl. Evid. 3 Greenl. Evid.

Flavius, on his return to Timon of Athens, with no funds, said to his lord, by way of further assurance of his failure to borrow of his friends: "Flav. If you suspect my husbandry, or falsehood, Call me before the exactest auditors, And set me on the proof." (Act II, Scene II.)

After he had been poisoned against his wife, by Iago, Othello tells him: "By the world, I think my wife be honest, and think she is not; I think that thou art just, and think thou art not; I'll have some proof." (Act III, Scene III.)