Moffie v. Slawsby
| Citation | 94 A. 193,77 N.H. 555 |
| Parties | MOFFIE v. SLAWSBY. |
| Decision Date | 04 May 1915 |
| Court | Supreme Court of New Hampshire |
Transferred from Superior Court, Hillsborough County; Pike, Judge.
Debt by Joseph Moffie against A. B. Slawsby. Facts found and case transferred from the superior court for Hillsborough county. Judgment rendered for plaintiff.
Debt, for a penalty under section 2, chapter 203, Public Statutes, with a count in assumpsit for money had and received. March 8, 1913, the plaintiff borrowed money of one Rotman, doing business under the name of the City Loan Company, and gave a note for $65, payable to the order of said company 13 weeks after date, in weekly installments of $5 each. To make up the sum named in the note, $12.50 usurious interest was included. After $28 had been paid, the note was before maturity assigned for value to the defendant, who collected the balance of $37. The defendant probably knew of the defect in the note when he took it.
John O'Neill, of Manchester, for plaintiff. Ivory C. Eaton, of Nashua, for defendant.
PARSONS, C. J. "The sum of three times the excess of 6 per cent. interest, the recovery of which is authorized by Gen. Laws, c. 232, § 3 (P. S. c. 203, § 2), is a penalty." Ashland Savings Bank v. Bailey, 66 N. H. 334, 335, 21 Atl. 221. This penalty is imposed for violation of the preceding section, which provides that "in all business transactions where interest is paid or secured, it shall be computed and paid at the rate of six dollars on a hundred dollars for one year, unless a lower rate is expressly stipulated." P. S. c. 203, § 1. Chapter 31, Laws of 1899, repealed all statutory provisions whereby the complainant or prosecutor is entitled to the whole or any part of the penalty imposed for the violation of any provisions of the Public Statutes. Hence as a private action for the recovery of a penalty, this suit is not maintainable. Bartlett v. Mansfield, 76 N. H. 582, 85 Atl. 756; Noyes v. Edgerly, 71 N. H. 500, 503, 505, 53 Atl. 311; Still o v. McConnell, 70 N. H. 158, 161, 46 Atl. 458.
In the ordinary civil case, the issues are decided by a balance of probabilities. Fuller v. Rounceville, 29 N. H. 554, 563. When the party having the affirmative of the issue has established the probable truth of his contentions, he has met the burden resting upon him. A finding that the defendant probably knew the defect in the note is a finding that the plaintiff, upon whom the burden rested, had satisfied the trier of fact that the...
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Horner v. Flynn
...be a search for certainty. In civil cases the factfinder must necessarily decide issues by a balance of probabilities. Moffie v. Slawsby, 77 N.H. 555, 94 A. 193 (1915). To aid to in performing its responsibility the jury ought to be instructed as to the degree of belief-inducing capability ......
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Porter v. American Export Lines, Inc.
...as `proof which produces "a reasonable belief of the probability of the existence of the material facts."' Likewise, in Moffie v. Slawsby, 1915, 77 N.H. 555, 94 A. 193, Chief Justice Parsons said: `In the ordinary civil case, the issues are decided by a balance of probabilities * * * When t......
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Smith v. Smith
...was not void (P. S. c. 203, § 3), nor was it affected by the provisions of Laws 1899, c. 31, relating to penalties. Moffle v. Slawsby, 77 N. H. 555, 94 A. 193; Smith & Sargent v. Company, 78 N. H. 152, 97 A. The plaintiff is not allowed, however, to receive compensation for the use of his m......
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Burch v. Reading Company
...as "proof which produces `a reasonable belief of the probability of the existence of the material facts'". Likewise in Moffie v. Slawsby, 1915, 77 N.H. 555, 94 A. 193, Chief Justice Parsons said: "In the ordinary civil case, the issues are decided by a balance of probabilities. * * * When t......