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Commonwealta v. Strangford.

shop there situate, occupied by the said Alexander and Andrew Strangford, a large quantity of ready made clothing, the whole of the value of five hundred dollars, a large quantity of dry goods, the whole of the value of five hundred dollars, a large quantity of boots and shoes, the whole of the value of five hundred dollars, and a large quantity of hats and caps, the whole of the value of five hundred dollars, which said personal property the jurors cannot more particularly describe, all of which property was of the goods and chattels of the said Alexander and Andrew, and had been mortgaged, and then and there stood mortgaged by the said Alexander and Andrew, to one Horace Matthews, by virtue of a mortgage dated the fifteenth day of July A. D. 1872, wbich said mortgage was then and is now unpaid and in full farce, did fraudulently and unlawfully remove and conceal, fraudulently intending thereby to place the said personal property beyond the control of the said Horace Matthews, the mortgagee aforesaid, and him the said Horace Matthews to cheat and defraud, against the peace,” &c.

Before the empanelling of the jury, the defendants moved to quash the indictment, because “the offence with which the defendants are charged is not set out fully, plainly, substantially and formally, but the description thereof is too vague and indefinite, and the description of property too uncertain.”

The court overruled the motion pro forma, and upon the trial in the Superior Court, before Bacon, J., the defendants were convicted. And the presiding judge, being of opinion that the ruling of the

the motion to quash was so doubtful as to require the decision of this court, at the request of the defendants, reported the case.

G. D. Robinson, for the defendants. The material allegations of the indictment do not conform in precision and certainty to the well established rules of criminal pleading. Constitution of Mass. pt. 1, § 12. 1 Chitt. Crim. Law, 169–173. Steph. PL. 296. Taylor v. Wells, 2 Saund. 74, note. Richardson v. Eastman and Oystead v. Shed, 12 Mass. 505. The defendants could not know against what they were called upon to defend. The descriptions of the property are indefinite, uncertain and lumping,

court upon

Commonwealth v. Strangford.

None of them are sufficient. 2 Russell on Crimes (3d ed.) 107. 1 Bishop on Crim. Proced. § 323, and cases cited. 2 Ib. § 313. 1 Archbold's Crim. Pract. & Pl. by Waterman, 89 and notes. Rex v. Gilbert, 1 East, 583, and cases cited in note. Bishop on Stat. Crimes, $ 440. 1 Wharton's Crim. Law, $ 354. Bac. Ab. Indictment, G. This position is fully sustained by the uniform practice and the current of decisions in this state. Commonwealth V. Hall, 15 Mass. 240. Commonwealth v. Maxwell, 2 Pick. 139. Commonwealth v. Brown, 15 Gray, 189. The case at bar falls within the principle and reasoning of Commonwealth v. Brown. Each is on an indictment for a statutory offence. The descriptions of the property in each are substantially the same. Descriptions of coin and bank bills are the only exceptions recognized in this state to the rule requiring particularity. Commonwealth v. Sawtelle, 11 Cush. 142. Commonwealth v. Grimes, 10 Gray, 470. Commonwealth v. O'Connell, 12 Allen, 451. Commonwealth v. Hussey, 111 Mass. 432. No reason is to be found for extending this indefiniteness to descriptions of other property. The want of description is not helped by the allegation,

66 Which said personal property the jurors cannot more particularly describe.” The indictment must state the facts of the crime with as much certainty as the nature of the case will admit. 1 Chitt. Crim. Law, 171. The allegation that the grand jurors could not more particularly describe the property is contradicted by the indictment itself. Number could be stated. “Hats and caps," “ boots and shoes," could be alleged separately. Dry goods,” and “ready made clothing,” could have been separated into the particular articles. Commonwealth v. Stoddard, 9 Allen, 280. 1 Chitt. Crim. Law, 213. 1 Bishop's Crim. Proced. $$ 297–302. The articles are not of one class, or of the same kind. To include them in general, sweeping allegations, without number, is bad.

C. R. Train, Attorney General, for the Commonwealth.

GRAY, C. J. The objects of the rule of criminal pleading, which requires property in reference to which an offence is alleged to have been committed to be definitely described in the indictment, are to identify the offence, to give the defendant full notice of the nature of the charge, to inform the court what sen

Commonwealth v. Strangford.

tence should be passed if he is convicted, and to prevent his being puit in jeopardy again for the same cause.

The authorities cited by the learned counsel for the defendants do not govern this case. Most of them relate to indictments for larceny, in which a particular description of the property stolen can ordinarily be obtained from its owner; and where that cannot reasonably be expected, as in the case of larceny of coins or bank bills, it is sufficient to allege the collective value of the whole, without specifying the value or denomination of each. Commonwealth v. Grimes, 10 Gray, 470. Commonwealth v. Butterick, 100 Mass. 1. In Commonwealth v. Hall, 15 Mass. 240, the indictment was for a nuisance by erecting in a public highway

a number of sheds and buildings,” which could easily have been separately described. In Commonwealth v. Brown, 15 Gray, 189, the indictment was for fraudulently conveying real estate without giving notice of an incumbrance thereon, and merely described it as “a certain parcel of real estate situated in Salem in the county of Essex." In Commonwealth v. Marwell, 2 Pick. 139, the indictment which was held bad for not stating the number of per8078 entertained by the defendant on the Lord's day was upon a statute which made him liable to a penalty for each person so entertained.

In the present case, the offence charged is a fraudulent removal and concealment of the defendant's own personal property with intent to place it beyond the control of the mortgagee. The punishment does not depend on the amount or value of the property. Gen. Sts. c. 161, $ 61. Beside the statement of quantity and value which is objected to as too indefinite, the indictment further describes the property as having been mortgaged by the defendants to a person named and by a deed of a specified date, and alleges that the jurors cannot more particularly describe it. This last allegation excuses the want of greater particularity in the description, if it would otherwise have been required. Commonwealth v. Webster, 5 Cush. 295, 323. Commonwealth v. Sawtelle, 11 Cush. 142, 144. Commonwealth v. Stoddard, 9 Allen, 280. Commonwealth v. Sherman, 13 Allen, 248. People v. Kingsley 2 Cowen, 522. Taking the whole indictment together, it clearly

Bosworth o. Pomeroy.

identifies the offence, and gives the defendants full notice of the charge which they are required to meet.

Judgment on the verdict.

EDWIN R. BOSWORTH vs. GEORGE POMEROY & another.

A plaintiff having a valid attachment upon the property of a defendant who, pending the

action, has been discharged in bankruptcy, and against whom he otherwise would have a right to a judgment in the common form, is entitled to a special judgment, to be er. forced only against the attached property; and when an attachment has been made upon both real and personal estate, his right to this special judgment is not affected by the fact that, by the act of the parties, the attachment as to the personal property has been dissolved.

Motion for the entry of a special judgment. The defendants, since the entry of the action, had been duly adjudged bankrupts. It appeared from the officer's return upon the writ that he had attached, September 6, 1872, real estate of the defendants, and September 27, 1872, a kiln of bricks. A petition in bankruptcy was filed against the defendants February 6, 1873, and Enos ParBons was appointed assignee of their estate.

The action was brought upon a promissory note, and its mak. ing having been admitted, the plaintiff filed the following motion : “ And now comes the plaintiff and moves the court here for judgment. The judgment only to be enforced against the property attached on the writ, and not to be enforced against the persons of the defendants, or any other property.

The defendants filed an answer to this motion, denying the plaintiff's right to the judgment for which he moved, because, as they said, October 21, 1872, an agreement was made between the plaintiff, the defendants, the attaching officer, and one Topliff, who had receipted for the attached property, that the defendants should, by a bill of sale, convey to Topliff the bricks which were attached ; that Topliff should sell them; that the proceeds should be applied to the payment of the plaintiff's claim, and the bal ance, if any, to the payment of other existing debts of the de fendants; that the defendants executed and delivered the bill of nale; that the plaictiff agreed to discontinue the suit without

Bosworth v. Pomeroy.

costs; that Topliff sold the bricks and held the proceeds, and that by the agreement the attachment was dissolved, and the defendants' right to the bricks and the proceeds from their sale had passed to the assignee in bankruptcy.

Parsons, the assignee, was “admitted as a party of record,” and filed a claim, in which, after stating the facts set out in the answer of the defendants, and claiming that by reason of them the attachment had been dissolved, he said that the sale to Topliff was fraudulent and void under the bankrupt act, as an illegal preference to the plaintiff, who was a preëxisting creditor of the defendants and knew them to be insolvent, and that it was intended by the parties to prevent the distribution of the property under the bankrupt act, and to defeat its objects and evade its provisions. He offered to prove these allegations and statements, and denied the plaintiff's right to the judgment for which he asked.

Upon the hearing upon the motion in the Superior Court, before Rockwell, J., it was agreed that the case stood as it would stand if the defendants had received their discharge in bankruptcy. It was conceded that an attachment of the defendants' real estate was duly made, and also a valid attachment of the bricks. The defendants and the assignee offered evidence tending to prove the allegations upon which they relied, to which evidence the plaintiff objected. The presiding judge “ being of opinion that the officer's return was conclusive as to the existence and continuance of the plaintiff's attachment, and that it was not competent for the defendants or the assignee to prove facts tending to contradict the officer's return against the plaintiff's objaction,” ordered the qualified judgment to be entered ; and the defendants and the assignee jointly alleged exceptions.

C. Delano, (J. C. Hammond with him,) for the defendants and the assignee.

W. G. Bassett, for the plaintiff.

MORTON, J. When a defendant in an action has been discharged in bankruptcy, and it is made to appear that the plaintiff has an attachment of property which is not dissolved by the proceedings in bankruptcy, the plaintiff is entitled to a special judg

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