
    Beach v. Hoyt.
    A defendant may avail bimself of the statute respecting absentees; during the late war, on a bearing in damages.
    Action on note dated in A. D. 1776; judgment was given for the plaintiff last court upon a demurrer, and continued to this court to be heard in damages: The defendant now exhibits his motion in writing, that he may have the benefit of the statute respecting absentees during the war, in the assessment of the damages; alleging, that the plaintiff had been absent during that period and that he could not get to him to pay said debt.
    The plaintiff replied that after judgment upon demurrer, the defendant could not resort to this defense, and besides it would now contravene the letter and spirit of the treaty with Great Britain. Demurrer.
   Judgment — -That the reply is insufficient; and the interest upon said debt was expunged during the war. This motion is perfectly consistent with the other defense which the defendant has made; as this does not go to the-merits of the cause, but to the quantum of damages, and the treaty does not forbid the courts taking into consideration equitable circumstances, between the parties, in the assessment of damages, and is what the statute authorizes the court to do.  