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IV. That the act was proper and requisite for pre- Modus. serving the ship from immediate loss, destruction or serious damage, or for preserving any person on board from danger to life and limb, as the case may be (1).

A charge of sending an unseaworthy ship to sea (2) Unseaworthy sets forth

I. That the accused, being owner (or in some manner described, having authority over a vessel described) did,

II. Send it to sea in an unseaworthy condition, so as to endanger the lives of certain persons named ;

III. By sending it to sea in a certain unseaworthy condition described.

IV. A narrative of the consequences.

IRREGULAR MARRIAGE. - Where the charge is for Irregular marcelebrating marriage without authority, the libel rised celebration.

, states

I. That the accused did "celebrate a marriage in a clandestine and inorderly way” between two parties described (3),

II. That he did this, "not being a minister of the “ Church of Scotland, or a Roman Catholic priest, or “ minister of any other church."

This is all that is necessary, but, where such is the No banns, money fact, it is usual to add that banns had not been pub- bration. lished, or proclaimed, or certified to the accused, and that he received money for performing the ceremony. The averment that the accused was not a minister “ of the Church of Scotland, nor of any other church,” is a sufficient assertion that he had no title to cele

riage. Unautho

taken for cele

brate (4).

In any

1 No such charge has been tried.

2 34 and 35 Vict. c. 110, § 11.Hugh Watt, H.C., July 23d 1873; 2 Couper 482 and 10 S.L. R. 653.

3 Hitherto the charge has been stated, “did wickedly, illegally, and feloniously, celebrate a clandes“ tine, inorderly, and irregular “ marriage,” &c. But this form was used as applicable to a com

mon law charge, which it has been
found is not relevant (John Ballan-
tyne, H.C., Mar. 14th 1859 ; 3 Irv.
352 and 31 S. J. 387).
future case the charge will be only
statutory, and therefore no words
but those of the Statute can be

4 Will. Dickson, Jedburgh, Sept. 7th 1844; 2 Broun 278.


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A charge of celebrating marriage without banns Marriage without requires

I. A narrative that the accused did celebrate a marriage contrary to the established order of the kirk, in a clandestine and inorderly way, between two persons described

II. In respect he did this without banns having been proclaimed, or any certificate of banns having been produced to him. BIGAMY.—In bigamy cases the libel sets forth

I. A narrative of the first marriage.

II. A statement that the accused " thereafter “ " lived and cohabited with the said A. B. as your law“ ful wife" (or husband),

III. That “the said A. B. being still alive, and your marriage with her (or him) still subsisting,"

IV. The accused did “wickedly and feloniously “ enter into a matrimonial connection” with

person described, the marriage ceremony having been performed by a certain person described,

V. That the accused did afterwards cohabit with the person as his or her) wife (or husband),

VI. That the accused did this “ well-knowing that “ the said A. B. was still alive, and that the marriage “ between you and her (or him) still subsisted.”

Where the charge is against both parties to the second marriage, after the narrative of the first marriage (between, say John Brown and Martha Black, and the cohabitation following on it, the libel charges that "you, the said John Brown and Mary “ White, did wickedly and feloniously enter into a “ matrimonial connection with each other, the marriage ceremony having been performed by," &c. Then follows the statement of cohabitation, and lastly it is set forth that “ both and each, or one or other “ of you, 'the accused,' did this, well knowing that “ the said Martha Black was still alive, and that the

Both parties accused.

"marriage between her and you, the said John Brown, MODUS. "still subsisted."

Such words are a sufficient charge of art and part against a person who had not been previously married (1). Where the charge is that both were guilty as "actors," in respect they were both previously married, and both guilty as "art and part," in respect they knew that the marriage of the other party still subsisted, great care is required. The cumulative averment is simple, that both and each knew that their respective marriages with A. B. and C. D. still subsisted. But in stating alternatives, the words of style," or one or other of you," become misleading and uncertain. In such a case the only safe course is to make each branch a distinct averment by itself, and to make a separate averment as to each accused (2).

ceremonial un

celebrant's name

It is not necessary to describe the ceremonial of Description of the first marriage; if it be alleged that the parties necessary, if were "lawfully married" at a time and place named, given. and by a person designed. Thus it was held not a good objection to a statement of a marriage by a Roman Catholic priest in Ireland, that it was not

"Green was still alive, and that
"the marriage between him and
"the said Jane Green still sub-
"sisted; or you, the said John
"Brown, well knowing one or
"other of these facts libelled; and
"this you, the said Jane Green
"did, well knowing (1) that the
"said Peter Black, your lawful
"husband, was still alive, and that
"the marriage between him and


you, the said Jane Green, still "subsisted; and (2) that the said "Mary White, the lawful wife of "the said John Brown, was still "alive, and that the marriage be"tween her and the said John "Brown still subsisted; or you, "the said Jane Green, well know"ing one or other of these facts."

1 Catherine Potter or Auchincloss and David Inglis, H.C., July 21st 1852; 1 Irv. 73.

2 Thos. More and Christina Jeffrey or Couper, Dundee, April 6th 1865; 5 Irv. 73 and 37 S. J. 417. For the amended charge see 5 Irv. 75 note. Even the form ultimately adopted, though relevant, seems unsatisfactory. The following is suggested as a better form" And this you, the said "John Brown did, well knowing "(1) that the said Mary White, 66 your lawful wife, was still alive, "and that the marriage between "her and you, the said John "Brown, still subsisted; and (2) "that the said Peter Black, the "lawful husband of the said Jane


" married."

marriage long

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subsistence of



averred that the parties were both Roman Catholics (though this was essential by the law of Ireland).

The averment of a lawful marriage justifies all requi" Lawfully site proof of its validity (1). Lawfully married ” Latitude where includes irregular marriage (2). Where the first previous. marriage was said to have taken place sixteen years

previously, the prosecutor was allowed, after naming

the alleged celebrant, to add “or by some other Averment of

clergyman to the prosecutor unknown” (3). The previous mar- want of a distinct averment of knowledge that the preriage indispens

vious marriage subsisted is fatal (4).

INCEST.—A charge of incest, which is generally libelled both at common law and on the statute, sets forth that

I. The accused did “wickedly, unlawfully, and “ feloniously” have carnal and incestuous intercourse with a person described,

II. That the person was the accused's sister or daughter, or as the case may be ; and

III. That he did abuse his body with the body of

the said person described. Where both If both the parties are charged, the libel describes

the relationship, and that they did wickedly, &c., have

carnal connection and incestuous intercourse, and did Where relation- abuse their bodies with each other. Where the relaship results from marriage. tionship of the parties results from the marriage of

one of them to a relative of the other, the libel sets forth in general terms that the accused had been

married to a certain person, and describes the relationPeningas, &co, ship resulting from the marriage (5). Where such is

the fact, it is usual to set forth that in consequence of



1 Patrick Quillichan, H.C., Jan. 24th 1852; J. Shaw 537 and 1 Stuart 306 and 24 S. J. 173.

2 Jas. Purves, H.C., Nov. 20th 1848 ; J. Shaw 124.

3 John Armstrong, H.C., July 15th 1844 ; 2 Broun 251. The prosecutor stated on his responsibility

that the latitude was essential in the circumstances.

4 Isabella Bain or Bell and John Falconer, H.C., July 13th 1832 ; 5 Deas and Anderson 509 and 4 S. J. 592.

6 John Oman, Inverness, April 14th 1855 ; 2 Irv. 146 (indictment). 1 A form of charge will be found in Will. Simpson and Ralph Dods, H.C., Dec. 29th 1845; 2 Broun 671.

against perpetrator.

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consenting party.

the incestuous intercourse, the female became pregnant, Modus.
and was delivered of a male (or female) child at a cer-
tain time and place.

SODOMY.-A charge of sodomy against the perpe- Sodomy, charge trator sets forth

I. The acts done by him (such as unloosening clothing, “wickedly and feloniously” bringing private parts in contact with hinder part of person described), detailing whether there was an assault in order to accomplish the purpose, or whether the other

person was a consenting party, or was under the age of puberty,

II. “And did penetrate the same with your private parts,"

III. And had thus “ unnatural carnal connection” with the said C. D.

A charge against a person consenting to the act sets Charge against forth

I. A narrative of “ wicked and felonious” exposure by both, of the act of contact, and of A, B., the perpetrator, penetrating as above, and

II. That the accused did, consent and allow A. B. (the perpetrator) to bring his private parts in contact with “the binder part of your naked body, and did “ consent and allow him to penetrate the same « aforesaid," III. And


had thus unnatural carnal connec« tion with the said A. B.” Where both are indicted, the charge sets forth Charge against

both parties. I. A narrative of wicked and felonious

exposure by both, and of the acts of the perpretator as above,

II. Of the consent of the other person as above.

III. “And you had thus, both and each of you, un“ natural carnal connection with each other” (1)



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