59 A.2d 343 | N.H. | 1948
The plaintiff's exceptions are overruled. In regard to his first contention, that the Court erred in granting the defendant's motion to strike off the default and judgment, it is sufficient to say that the record warranted a finding that the defendant John was justified in assuming his employer would undertake his defense. The action of the Trial Justice being well within his discretion (see R. L., c. 398, s. 2; Superior Court Rule 8, 93 N.H. Appendix) presents no further question for us to consider. Lancaster National Bank v. Whitefield c. Trust Company,
We turn now to the plaintiff's claim that the Court was bound as a matter of law to enter a decree in his favor, based on principles of estoppel and the rule in Harlow v. Leclair,
The plaintiff also maintains that a presumption exists that John is the owner because he was clothed with the indicia of title. This argument loses sight of the fact, that so far as appears, no one relied on the situation to their detriment, and hence as previously pointed out there is no basis for an estoppel. Furthermore in this state a presumption is not evidence — its sole function is to take the place of *157
evidence. When the latter appears, if only to the extent that an inference may be drawn from it, the presumption vanishes. Heffenger v. Heffenger,
Lastly the plaintiff argues that the Court erred in placing the burden of proof upon him. He appears to rely here, partially at least, upon the principle of a presumption in his favor, of which we have already disposed, and also upon the alleged intent of the Legislature as shown by the provisions of R. L., c. 412, ss. 26, 27, 28, relative to trustee process. It is doubtful if the statute applies here since the plaintiff has not chosen to rely on it, but has brought an action in the nature of a creditor's bill to reach assets, claiming fraud by the defendants and an intent to hinder and delay the plaintiff in collecting his judgment. However we are unable to find any such intent in the wording of the statute. Section 28 refers to the third person, in this case Adele, as the "claimant" and the party making the attachment, here the administrator, as the "plaintiff." Nowhere does it indicate any shifting of the burden of proof. Nor do the cases cited by the plaintiff support his position. In Levy v. Woodcock,
The plaintiff's argument that as the Court could not tell "where the truth lies" he must have found Adele was not the owner and John was, requires little consideration. Disbelief does not take the place of evidence. Brickell v. Company,
Exceptions overruled.
*158All concurred.