[Merrimack,

Assumpsit. A referee found due to the plaintiff, among other items, $180 for a quantity of hay. It appearing that at the date of the plaintiff’s writ no cause of action in contract or in tort had accrued to him for the hay, he was permitted to withdraw the item, and take judgment on the report for the remainder.

Blodgett, J., did not sit: the others concurred.