*338 By the Court,
Cowen, J.It was agreed by the counsel for the defendant that the referees had no power to inquire of damages for breach of the special agreement, that not being matter of account within the 2 R. S. 305. 2d ed. § 40; The trial would obviously require the examination of a long account ; and then the statute in terms authorizes the court to refer the cause, that is to say, the whole matter. Such has been the uniform practice. On the cause going down, every thing inquirable into on a trial should be heard and decided by the referees ; otherwise, a reference must be withheld on its appearing that the most trifling matter, a small note for instance, might be introduced at the hearing. The statute, so far from restricting the power of reference to matters of account, alone, does not even confine it to actions arising ex contractu, though we have in practice confined it to such. The limitation ought not farther to be narrowed by construction, when we consider how precious is time in some of our circuits.
But it is said the right to refer is absolutely unconstitutional, as being contrary to the seventh article of the amendments to the constitution of the United States. That, however, relates to such courts only as sit under the authority of the United States. In respect to the forms of [ *339 ] proceeding *in suits, the constitution and laws of the United States are regarded as those of a foreign government.
But the seventh article (§ 2) of our own constitution declares, that “ the trial by jury, in all cases in which it has been heretofore used, shall remains inviolate forever and the case before us is supposed not to come within the exception. It is a satisfactory answer, however, that references as broad as that now contended for by the plaintiff, were sanctioned by statute, and practised by the courts long before the adoption of the constitution.
The objection calls for the less countenance in this case, inasmuch as the parties mutually consented to the reference by writing. This of itself is a waiver of the objection, even if the constitution stood in the way. A party may waive a constitutional as well as a statute provision made for his own benefit. The contrary argument would deprive a criminal of the power to plead guilty, on the ground that the constitution has secured him a trial by jury.
Motion to set aside report of referees denied.