Boyd v. Davis

Where an action for money had and received was submitted, by a rule of the Court to referees, and in the rule the plaintiff agreed that he had no other demand against the defendant; the referees reported that the defendant still held sundry notes, the proceeds of which, when collected, would belong to the plaintiff, and gave a list of them, such agreement is no bar to a future action for the said proceeds when collected.

Assumpsit for a large sum of money had and received by the defendant for the plaintiff’s use. The action had been referred by a rule of Court to certain referees, and in the agreement it was stated that the plaintiff had no demand against the defendant, but what was included in the present action. From the report of the referees it appeared that the defendant, who had been many years the keeper of an insurance office, in which the plaintiff had been an underwriter, had in his hands promissory notes, payable to himself as office-keeper, amounting nearly to 3000 dollars, which were given as premiums upon risks undertaken by the plaintiff, * and which he sup- [ * 360 ] posed had been collected by the defendant before the commencement of this action. As the money had not been in fact collected, the referees did not award it to be paid to the plaintiff, but annexed a schedule of the notes to their report, and declared that the defendant would be accountable for them when collected. The plaintiff’s counsel objected to the acceptance of the report, apprehending that, from the terms of the rule, he would be barred from recovering, in any future action, against the defendant, for his loches in neglecting to collect the moneys due on the notes.