If he elect the former mode of proceeding, he must deny the right of the Demandant, word for word as the Demandant has set it forth, and this, either in person, or by some other fit man. But here we should observe, that after the Tenant has once waged the Duel he must abide by his choice, and cannot afterwards put himself upon the Assise.[92] In this stage of the suit, the Tenant may again avail himself of three reasonable Essoins in succession, with respect to his own person and of the same number with regard to the person of his Champion.[93] All the Essoins which can with propriety be resorted to having expired, it is requisite, before the Duel can take place, that the Demandant should appear in Court, accompanied by his Champion armed for the contest. Nor will it suffice, if he then produce any other Champion than one of those, upon whom he put the proof of his claim: neither, indeed, can any other contend for him, after the Duel has been once waged.
But if he who has waged the Duel should, in the interval pending the Suit, happen to die, a distinction is to be made. If he died a natural death, and this is declared by the Vicinage, (as it ought always to be, if there exist any doubt concerning the fact,) the Demandant may in the first place recur to one of those upon whom he placed his proof, or to another proper person, even if he have not named any other, provided that such other be an unobjectionable Witness—and thus the Plea may begin again. If, however, his death was occasioned by his own fault, his Principal shall lose the cause. It may be asked, whether the Champion of the Demandant can substitute another in Court, to make that proof which he took upon himself? According, indeed, to the Law, and ancient custom of the Realm,[94] he cannot appoint any other, unless it be his legitimate Son;[95] and here it may be observed, that the Champion of the Demandant should be such a person as is a proper Witness of the fact. Nor is it lawful for the Demandant to prosecute his appeal in his own person, because it is not permitted unless by the intervention of a proper Witness, who has both heard and seen the fact.
But the Tenant may defend himself, either in his own proper person, if he chuse so to do, or by any other unobjectionable Witness, if he prefer that course. But, if he has produced a Champion, and such Champion should die in the interval, it may be asked, what the Law is, whether the Tenant may defend himself by another Champion, or whether he ought to lose his suit, or his seisin only? We must here have recourse to our former distinction. It should also be remarked, that the Champion of the Tenant cannot substitute another in Court for the purpose of undertaking the defence, unless it be his own lawful[96] Son.
But, it frequently happens, that a hired Champion is produced in court, who, on account of a reward, has undertaken the proof. If the adverse party should except to the person of such a Champion, alleging him to be an improper witness, because he had accepted a reward to undertake the proof, and should add, that he was prepared to prove this accusation against the Champion, (if the latter chose to deny it) either by himself or by another, who was present when the Champion had taken the reward, the party shall be heard upon this charge, and the principal Duel shall be deferred. If, upon this charge, the Champion of the Demandant should be convicted and conquered in the Duel, then, his Principal shall lose the suit, and the Champion himself, as conquered, shall lose his law, namely, he shall from thenceforth never be admitted in Court, as a Witness, for the purpose of making proof by Duel, for any other person;[97] but, with respect to himself, he may be admitted, either in defending his own body, or in prosecuting any atrocious personal injury, as being a violation of the King’s Peace. He may also defend by Duel his right to his own Fee and Inheritance.
The Duel being finished, a fine of sixty shillings[98] shall be imposed upon the party conquered, in the name of Recreantise,[99] and besides which he shall lose his Law; and, if the Champion of the Tenant should be conquered, his Principal shall lose the Land in question, with all the fruits and produce found upon it at the time of Seisin of the Fee, and never again shall be heard in Court concerning the same Land.[100] For those matters, which have been once determined in the King’s Court by Duel, remain for ever after unalterable. Upon the determination of the suit, let the Sheriff be commanded by the following Writ, to give possession of the Land to the successful party.
CHAP. IV.
“The King to the Sheriff, Health. I command you that, without delay, you give possession to M. of one Hyde of Land, in such a Vill, concerning which there was a suit between him and R. in my Court; because such Hyde of Land is adjudged to him in my Court, by the Duel. Witness, &c.”