State v. Estabrooks

70 Vt. 412 | Vt. | 1898

Tyler, J.

This indictment is based upon § 5080, V. S., which must be construed to include affidavits to chattel mortgages.

The purpose for which such a mortgage is given under § 2252 is, that the mortgagor may give the mortgagee security upon the personal property described in the mortgage, for the payment of the debt described in the condition thereof, the mortgagor retaining possession of the property until the condition is broken. By § 2253 the parties are required to make and subscribe an affidavit, in substance, that the mortgage is made for the purpose of securing the debt specified, and for no other purpose, and that the same is a just debt, due and owing from the mortgagor to the mortgagee, which affidavit, with the certificate of the oath signed by the authority administering the same, must be appended to such mortgage. A writing has no validity as a chattel mortgage unless it is given as such security.

It is alleged in substance in this indictment, that the respondent swore falsely that the mortgage was given for the purpose of securing the debt specified in the condition thereof, and that the same was a just debt, etc., but the condition of the mortgage is not set out, nor is any debt described purporting to be due from Harlow to the respondent. The only other mention of a debt in the indictment is, that the mortgage was given “as security for the payment of a certain promissory note described in the condition of ■said mortgage deed,” without alleging by whom the note was given nor to whom it was payable. The indictment is insufficient in not describing the pretended debt and in not alleging that the respondent swore falsely that it was a just debt honestly due and owing from Harlow to him, and that the mortgage was given as security for its payment.

Section 2253 requires that the affidavit, with the certificate of the oath signed by the authority administering the same shall be appended to such mortgage. This is a material matter, yet the indictment contains no direct allegation that the affidavit made and subscribed by the respondent was appended to the mortgage executed by Harlow to him, nor is there a necessary implication that the affidavit relates to that mortgage.

V. S. 2269 provides that certain machinery may be mortgaged by deed executed, acknowledged and recorded, as deeds of real estate, without the affidavit required in chattel mortgages under § 2251, 2252 and 2253. The indictment does not disclose what kind of personal property was mortgaged, nor whether it was situated in this state, nor allege that it was a kind of property and so situated that it was the subject of a chattel mortgage. The averment that it was “a chattel mortgage, to wit, a mortgage deed,” is quite as consistent with its being a mortgage of machinery, such as is described in § 2269, as that it was property subject to a chattel mortgage.

There is no averment that the mortgage was one that was required by law to be verified by the respondent’s oath, and the substance of the mortgage is not set out so that the court can form any judgment as to the necessity of an oath.

The indictment is too vague and indefinite in its material allegations to inform the respondent of the nature and cause of the accusation against him. It does not fulfill the requirement of the Act of 1890, No. 29, Y. S. 5083, nor the requirement of the constitution. The mortgage is not so described or identified that a conviction or an acquittal in this case would be a bar to a further prosecution for the same cause.

The general rules of law relative to the form of indictments are stated in State v. Rowell, reported in this volume, and need not be repeated in this case.

Demurrer sustained; indictment adjudged insujjicient and quashed.