#### Jonathan Forseth, Plaintiff in Error, *versus*Guy Shaw.

The submission of an action, by a rule of the Court, to referees mutually chosen by the parties, operates as a waiver of all exceptions to the forms of process, or may be considered as a release of errors, or as an estoppel to the assignment of errors, in the proceedings anterior to such submission.

This was a writ oí error, by which a judgment of the Circuit Court of Common Pleas, holden in this county in April last, rendered in an action wherein the said *Shaw*was plaintiff and the said *Forseth*was defendant, was brought before the Court.

The original action was in case, and was grounded on the ninth section of the statute of 1794, c. 66, (entitled, “An Act to enable creditors to receive their just demands out of the goods, effects, and credits, of their debtors, when the same cannot be attached by the ordinary process of law,”) by which section it is enacted that any *257person summoned as a trustee, &c., “ who shall knowingly and wilfully answer falsely, shall, upon conviction thereof in the S. J. Court, be adjudged guilty of perjury, and be subject, &c., and shall also, out of his own proper estate, be liable and subjected to pay to the plaintiff in the action, his executors, &c., the full amount of such judgment as he, they, or any of them, may have recovered against the principal, in case the same be unsatisfied; otherwise such part thereof as may remain unsatisfied, together with the legal interest thereof and double costs of suit, to be recovered in a special action on the case.”

The plaintiff in the original action set forth his original writ against one *Theophilus Taylor,*as principal, and the said *Forseth*and others, as his trustees, the return thereof, and the entry of the action in the Common Pleas. He then'*al- [ * 254 ] leges that the said *Forseth*appeared, pursuant to the summons served on him as trustee, and submitted himself to an examination on oath before the same court in the same cause; and that he thereupon was, by the said court, adjudged not to be the trustee of the said *Taylor;*that, after sundry continuances, he, the plaintiff, recovered judgment against *Taylor*for the sum of 117 dollars 50 cents, damage, and 13 dollars 79 cents, costs of suit; and that the said judgment remained in force. The plaintiff then avers that *Forseth,*upon his examination aforesaid, did, among other things, in his written answer, by him subscribed and sworn to, answer and declare that, &c., *[reciting the*answer,] that the said recited answer and declaration of the said *Forseth*was not true, but, on the contrary, was then and there false in this, &c., *[contradicting the answer in various*particulars,] all which the said *Forseth*then and there well knew was false, groundless, and untrue. And so the said *Forseth*did then and there, upon his said examination, upon oath as aforesaid, had as aforesaid, knowingly and wilfully answer falsely, whereby the said *Shaw*wholly lost the benefit of his summoning the said *Forseth,*and of his said judgment, which yet remains wholly unsatisfied. All which is against the form of the statute, &c. By force of which the said *Forseth*became liable, &c. Yet, though requested, &c.

The record then contains a rule, by which the parties agreed to refer the case to the determination of three persons, who at a succeeding term made their report, — that they had met the parties, and, after a very full hearing of them and their proofs, did “ award and determine that the said *Guy Shaw*do recover against the said *Jonathan Forseth*the sum of 144 dollars 2 cents, debt or damages, being the amount of said judgment recovered by the said *Guy Shaw*against the said *Theophilus Taylor,*with interest thereon, and also the costs of the reference, taxed and the costs of the *258to be taxed by the court.” The report was accepted, and judgment rendered for the sum reported by the referees, and double costs of suit.

* The errors assigned, besides the general error, were, — that it is not alleged, nor does it appear, that the answer of *Forseth*was false in any point material to the issue or question then to be determined; that it is not sufficiently alleged in the declaration that *Forseth*was, in fact, the trustee of *Taylor;*that there is no sufficient cause of action alleged in the declaration; that the referees have not found, nor does it any where appear in the record, that *Forseth*was guilty of committing the grievances, or any of them, complained of in the declaration.

The defendant in error pleaded *in nullo est erratum.*

*Ashmun,*for the plaintiff in error.

The report of the referees does not find the defendant guilty, which was the issue committed to them; but merely awards a sum of money for the plaintiff, without showing any ground for such award. A verdict like this would be insufficient, and the award of the referees is in nature of a verdict.

Objections to the declaration are, that it is not alleged that the oath to the trustee was administered by any person lawfully authorized for that purpose. It is merely stated that the trustee submitted himself to an examination upon oath. It does not appear where the oath was administered. It is not averred that the answer was material, or that it had relation to any question or issue on trial. It.is not alleged that the supposed trustee made the declaration that he had no goods, &c., which the statute contemplates to be made, before the examination on oath takes place. Upon such declaration an issue is, in effect, formed between the plaintiff and trustee, which is to be decided by the answer on oath of the trustee. Until such issue, there is no authority in the Court to administer the oath. It does not appear that any interrogatory was put to the supposed trustee. There could, then, be no false *answer,*within the words of the statute. It is not averred, except by way of inference, that the trustee answered falsely. In an action upon a statute so highly penal as this, a strict construction should obtain, and the party should be holden to bring his case within the very words [ * 256 ] of its * provisions. (1) To support this action, the plaintiff ought to allege and show a previous conviction of the perjury upon indictment. The statute plainly requires this con struction; and a good reason is, that the civil remedy of the party should rest on the condition that he first procures a conviction, to satisfy the public justice, before he shall obtain satisfaction for hi» private injury.

*259*C. Dewey,*for the defendant in error.

Referees are not bound to the same strictness and formality, in their awards, as juries in finding their verdicts. These latter must find the precise issue joined by the parties; whereas referees have the whole cause submitted to them in all its parts and views, without regard to the pleadings. If the objection on this point prevails, most of the decisions of our courts upon the reports of referees are erroneous, and, instead of a cheap and expeditious mode of terminating suits, the submission of causes in this way will prove to have been fruitful sources of ex pense, delay, and litigation.

As to the objections to the declaration, it appears that the supposed trustee was sworn in a court legally authorized to administer oaths. Supposing an issue necessary to have been joined between the plaintiff and supposed trustee, it must be presumed to have been formed. The judgment in that action is unreserved, and is not now before this Court. The legal presumption is, that it was duly rendered. There is, however, an absurdity in supposing that the statute requires the trustee solemnly to declare what., the next moment, he must contradict in his sworn answer to interrogatories. If there is any weight in the objection, that no interrogatory was put, and so no false answer made, it is answered by the legal presumption that the proceedings of a court of record have been regular, until the contrary is shown. The statute does not require that the declaration be false in a material part, but only that it be wilfully false. But the allegations sworn to in this case sufficiently appear to have been material. The construction of the statute, which would make a conviction of perjury a prerequisite to the right of * recovering in the civil action, is against the [ * 257 ] literal meaning, as well as' the spirit, of the act. The phrase “ upon conviction in the Supreme Judicial Court,” &c., was employed merely to designate the tribunal, which was to have cognizance of the new offence about’ to be created. But whatever might have been the force of any or all the exceptions taken by the plaintiff in error, if they had been taken on a demurrer to the dec laration in the original action, it is insisted they cannot avail to avoid the award of referees mutually chosen, and the judgment of the Court thereon. The defects, if any exist, would have been cured by a verdict. The agreement of the parties to submit the case, “ with all its imperfections on its head,” to a tribunal of their own election, was a virtual waiver of all objections in point of form, and" ought to have put at rest forever all question on the subject.

(1)

 1 *Hawk. P. C.*c. 69, § 17.

Sew all, J.,

delivered the opinion of the Court.

The plaintiff in this writ of error was defendant in the proceed mgs certified from the Circuit Court of Common Pleas; and the judg *260ment, now excepted to as erroneous, was there rendered against him for a sum of money, as due to the present defendant in error, or as recoverable for damages in the suit instituted by him. The errors now assigned are exceptions to the declaration of the writ in which that suit commenced. The declaration is said to be insufficient in law, as the foundation of a judgment, in several particulars ; and there is one exception to the form of the award and report by the referees, to whose determination that *case,*as_it is expressed, was referred by the agreement of the parties, and the rule of court entered thereon.

The exceptions to the declaration would deserve attention, and perhaps would be, some of them at least, fatal to a judgment rendered upon it in the ordinary course of law, as upon a verdict or demurrer. The answer, however, for the defendant in error, is, we think, satisfactory and ''conclusive, upon all the exceptions to the declaration in the original suit.

This judgment was rendered upon an award and report *[ **.238 ] of * referees, deriving their authority from a rule of court, entered of record and made a part of the proceedings, by virtue of the agreement and consent of the parties. Such an agreement operates as a waiver of all exceptions to the forms of process; or it may be considered as a release of errors, or as an estoppel against any assignment of errors, in the proceedings anterior to the rule mutually consented to by the parties, each with the other. (2)

In the record before us, the original declaration states a demand or cause of action, — a case, as the parties express it in their agreement ; and whether the declaration contains the whole of the plaintiff’s title, or a title sufficiently and technically averred, with all the allegations essential to support a judgment upon a verdict or demurrer, or not, is a question not now to be examined, after an agreement by the parties that referees should decide their controversy, and determine between them upon the case, or demand, there fully suggested, if it was not, to every purpose, technically exhibited.

\nd, to notice the most material of the exceptions which have been argued, because it goes to the merits of this demand and controversy, we incline to the opinion that the counsel for the plaintiff in error is incorrect in his construction of the statute, which provides 9 remedy, by action on the case, for the party injured by the false answers of any one summoned as a trustee and discharged. Such a person shall, upon a conviction in the Supreme Judicial Court, be adjudged guilty of perjury, and be subject to the pains and disabili *261ties thereto by law incident; and “ shall also, out of his own proper estate, be liable and subjected to pay to the plaintiff in the action, &c., the full amount of the judgment recovered against the principal, or such part thereof as may remain unsatisfied, together with double costs, &,c., to be recovered in a special action on the case.”

The remedies are, we think, concurrent; and the remedy for the party injured does not depend upon the event of a public prosecution.

* The present decision is not, however, influenced by [ * 259 ] this opinion; for a conviction is not essential to be alleged or proved, where the parties have submitted to a determination by referees, whether any thing is due and recoverable in a case of that nature, or arising out of the answers of one summoned as trustee, and discharged. It might be supposed, indeed, to support the decision of the referees, that a case of wilful and corrupt perjury had not been proved ; but some gross mistake, injurious to the plaintiff in the suit to the extent of his demand, and requiring to be equitably corrected by the award of compensation, and of double costs, according to the demand of his writ; the right to double costs being a part of the case submitted.

The referees have not said, indeed, (and this is assigned as an error sufficient to reverse the judgment rendered on their report,) that the plaintiff in error had been guilty of false answers, or had perjured himself, when summoned and examined, whether a trustee or not. But they have determined a case or controversy, upon a demand and action alleged to have arisen in that manner ; and their determination is, that the plaintiff therein “ do recover the sum oí, &c., being the amount of his judgment recovered,” &c., (against the principal in the suit, wherein the trustee was examined,) “with costs to be taxed by the court.” The referees have adopted the wo/ds of the statute in awarding the sum recoverable, and have declared the defendant further subject to such costs as the court may by law assess or tax.

There might have been a question raised, of the intention of the referees respecting the costs, sufficient to give occasion for some inquiry in that particular, when the report was accepted; but the *prima facie*evidence, from the tenor of the report, the most obvious construction of it, certainly is, that the defendant, the present plaintiff in error, was, for the demands against him arising by law, on the case submitted, entirely within the provision of the statute, and holden to indemnify the plaintiff to the extent of that provision And we cannot adopt what has been argued in support of the *writ of error, that an issue between the parties, [ * 260 ' or a precise verdict of gu:’ty of false answers, or guilty *262of perjury, is essential to this conclusion ; or, if essential to the determination of the referees, such a verdict is fully implied in the decision they have reported; and referees are not restricted to the use of technical forms in their reports. They had determined, substantially, the case submitted to them, and the judgment is pursuant to their award. This Court, therefore, affirm the judgment, with costs for the defendant in error, *(a)*

(2)

 1 H. *Black.*21, *Camden & Al.*vs. *Edie.*

(a)

 [Vide *Coffin*vs. Cottle, 4 *Pick.*454. — Ed.]