
    MIDDLESEX COUNTY,
    JULY TERM, A. D. 1789.
    Dennie, Administrator of Dennie v. Chapman and Beebe.
    The statute respecting absentees is not a penal but a remedial statute. Where the assignee of a note was with the enemy, if the promissee remained at home, in the United States, and was not a bankrupt; the case is not within the statute.
    Error; complaining of a judgment of the County Court on. a note given by the defendants to said John, deceased, dated 2d of July, A. D. 1766 for- £200 lawful money with interest. This note was indorsed to Harrison Grey and the defendants notified of it, and this suit is for his benefit. In November A. D. 1768 they paid Grey two years’ interest and £30 principal; in December A. D. 1769, they paid £40 to Grey — all which payments were indorsed on the note. Erom the commencement of the war Grey was inimical to the country, and went off to the British before the declaration of independence, and never was a subject or citizen of tbe United States; and at tbe time of making tbe treaty, was a British subject. Tbat said John Dennie was friendly and ever remained in tbe country until bis death, and tbat tbe plaintiff also, was friendly and always dwelt in tbe country at Boston.
    It is further stated in tbe pleadings — Tbat tbe defendants collected the money in continental bills, to pay said debt; but by reason of said Grey’s being gone with tbe note, they could find no person to pay it to; and tbat it depreciated in their bands: And pray to have said note chancered both as to tbe principal and interest, agreeable to tbe statute provided in such cases. Tbe court is of opinion tbat tbe case is within tbe statute, and tbat said note be chancered to £3 15s. 3d. lawful money; and gave judgment for tbat sum and tbe cost.
    Errors assigned are — 1st. Tbat this case is not within tbe statute. 2d. Tbat if it was tbe defalcation is too great. Tbe judgment was reversed; and upon both points tbe opinion of tbe court was against tbe judgment of the County Court.
   Tbe statute provides, tbat in every suit or prosecution in favor of persons who have gone to, and remained with tbe ■enemy, against any person, etc. who has remained in tbe United States; tbe court before whom such suit, etc. is depending, is authorized on motion of tbe defendant, to try and determine said cause, etc. according to tbe rules of equity; and tbe defendant is allowed to plead any special matter relative to principal and interest: And if it shall appear to tbe court, tbat in equity and good conscience abatement ought to be made, either from tbe principal or interest or both; tbe court is authorized to order and decree what they shall find to be equitable, both as to debt and cost.

This is not a penal, but a remedial statute, made for tbe relief of debtors, in suits, brought against them, by their creditors, who by going and residing with tbe enemy during tbe war, have put it out of their power to pay them their debts, in tbe currency of tbe country; which they were obliged by law to receive; whereby they are exposed to suffer loss inevitably, unless relieved; and altogether by the creditor’s placing himself in a situation inaccessible by the debtor.

By the laws of this state notes are not negotiable; and although, by the assignment, the assignee has the property of the note, and a right to collect and convert the money to his own use; yet the suit must be in the name of the original promisee or his administrator, etc. who has power, unless bankrupt, to control the action, to receive the money and discharge the note, and to whom in this case the defendants might have paid or tendered the money, which would have been good; as both the plaintiff and said John were of sufficient ability to pay the money over to said Grey.  