The statute under which the indictment was found is, that if any person "shall make any deed or conveyance of any real estate, knowing that any incumbrance exists thereon, without informing the grantee, by exception in the deed or otherwise, before any part of the consideration is paid, of the existence, nature, and amount thereof, so far as he knows the same," c. It is not alleged in the indictment that the respondent made the deed without giving the grantee the required information before any part of the consideration of the deed was paid; nor is there any allegation bringing the case within the provision of the statute, which makes the withholding of information criminal only when the concealment is continued until part of the consideration is paid. The omission of such an averment is fatal to the indictment. State v. Gove, 34 N.H. 510. It is not enough, in this case, to follow the language of the statute: the existence of the incumbrance when the deed is made, the consideration paid, or the fraud perpetrated, should be stated in positive terms. What is said about respondent's knowledge of the incumbrance is not an averment of the existence of an incumbrance, except by inference. For want of positive averment on that subject the indictment is bad. State v. Divoll, 44 N.H. 142; State v. Fitts, id. 623; State v. Beasom, 40 N.H. 373; State v. Barrett, 42 N.H. 469.
Indictment quashed.
FOSTER, J., did not sit. *Page 81