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IN(a) 1.1 writs of right, and in appeals(b) 1.2 that touch life, trial may be by Battail at the Defendants choice. There¦fore(c) 1.3 the Demandant in a Writ of right, had need always to have his Champion rea∣dy, else he may happen to be deceived.
The battail in a writ of right must be all by Champions. Therefore in a writ of right an Infant may joyn the Mise and try it by battail. So can he not in an appeal, for there it must be done in proper person:
which Champions must be(a) 1.4 free-men not villeins, and(b) 1.5 so is the issue taken that he is ready to defend it by the body of J. S. a Freeman. Therefore(c) 1.6 for the Lord to offer his villein for his Champion, in a Writ of right,* 1.7 or in an appeal, is a manumission of him. And the Demandants Champion must have seen him or his Ancestors in possession, and thereof take his oath.
Westm. 1. cap. 40. Touching the Oaths of the Champions it is thus provided, be∣cause it seldom hapened, but that the Cham∣pion of the Demandant is forsworn, in that he sweareth that he or his Father saw the seisin of the land or his Ancestor. And that his Father commanded him to dereign the right, that from henceforth the Champion of the Demandant shall not be compelled so to swear.
The battail in an appral must be in proper person.* 1.8 And therefore there the Defendant is restrained from the choice of battail, and must needs try i•• by Jury. If there be any notorious presumption of the fact in him, as that he brake Prison, or escaped by flight being led towards Priso•• for it,* 1.9 or was(b) 1.10 indicted for it. So in an ap∣peal of Murder, that he was taken in the act with a(c) 1.11 bloody knife, in an appeal of Robbery, that upon fresh sute and hue and cry he was taken with the manner,
having some of the money about him,* 1.12 or of ••••decillity in the Plaintiff, as if he be maymed, or within age, &c.
But against a Peer of the Realm bringing an appeal,* 1.13 the Defendant shall not wage battail, much less against the King, either upon an indictment or appeal. 6 Ric. 2. cap. 6. Ousleth battail in an appeal of Rape.
Old Na. Br. 1
See the manner of wa∣ging battail & performing it. 9 H. 4. 3. in an appeal of robbe∣ry.
17 E. 3. 2. in an appeal of murder.
Old N. B ib. 9 E. 4. 35.
Br. Chal. 196
3 H. 6. 55.
Bractod.
Westm. 1. Cap. 40 so reciteth it.
9 E. 4. 35.
1 ass. Pl. 6.
22 E. 4. 19.
6 H. 3. Coro 411.
22 E. 4.29.
Discourse of the Cust. of London, fol. 13. Stam. 108.