The court are inclined to the opinion, according to the argument of the plaintiff, that, by the reference of a cause by a rule of court, in the usual, form, all technical exceptions to the form of the declaration, and the strict rules of proceeding, are waived by the mutual consent of the parties, on which the rule is founded, and by which the case, or cause of action, is referred and embraced in the submission. Forseth v. Shaw, 10 Mass. 253. And perhaps the question, whether any matter is or is not within the submission, is well tested by another, to wit, whether the same matter could be introduced by way of amendment, either by varying an existing count, or filing a new one ; because, if it is simply another mode of stating the same cause of action, it is admissible, otherwise not.
The case submitted was an action at common law, charging false representations that the defendant had funds, by reason of which the plaintiff summoned him as trustee, and he was discharged, having answered on oath that he had no funds. This was the cause of action sued for; this was the case referred. When the arbitrators were satisfied that the action was not maintained by the proof, the plaintiff then desired to show that the defendant actually had funds, but falsely declared on oath that he had not. This is certainly a cause of action, and the same proof would warrant a conviction of perjury. Rev. Sts. c. 109, § 78. But it would not be *461pursued in an action at common law, but by a special action on the case, given by the statute. No doubt both might be joined, by different counts, in the same action; because, when the plea, issue and judgment are the same, different causes of action may be joined in the same suit.
The distinction is often a nice one, and in this case it is not without difficulty; but the court are of opinion, with the arbitrators and the court of common pleas, that the claim of damages at'eommon law, for a false representation that one has funds, when he has not, and a special action on the case for falsely affirming on oath that he has no funds, when he has, are not the same cause of action; and that a reference of the former does not embrace the latter. In the former, the law would give general damages, according to the loss the plaintiff may have sustained by the fraud; in the latter, the plaintiff is to recover of the defendant his whole debt, or so much of it as remains unsatisfied, out of the defendant’s own goods and estate.
Exceptions overruled, and judgment on the award, for the defendant.