delivered the opinion of the court.

The question before the court is stated improperly; it is mot whether the justice can or cannot refer a cause, but whether the parties may not do it, and the justice enter on his record a memorandum of their consent, and give judgment according to the award to which they have voluntarily submitted.

All the arguments that have been urged apply to the question as first stated, and are equally applicable to all courts whether of extended or limited jurisdiction. None of them have any authority to compel the parties to submit their controversies to the dicision of arbitrators. Neither do the cases with regard to limited jurisdictions oppose this course. There is no doubt in this case of the jurisdiction of the justice, and of his right to pronounce judgment; the objection goes only to the course of proceeding, and as that was selected by the parties themselves, they should not be permitted to question it. The justice has not delegated, his judicial authority. The parties themselves withdraw from him the *73investigation of the facts; but the judgment is his own, and pronounced upon an award to which they must be considered as consenting.

The course pursued in this case is agreeable to the custom ©f the country, and that is a material circumstance to be considered. Judgments of this kind have been repeatedly given, and no objection was ever taken to them before.

Inferior courts of this description calculated to administer justice at a less expense, and in a speedier manner than the usual mode of proceeding in courts of common law will admit, appear to me to be highly necessary, and if properly regulated must be beneficial to the community.

Were we to examine their proceedings by the strict rules of law, and to overturn their judgments for all defects or omissions in matters of mere form, it would deprive these courts of all their beneficial qualities; it would be extremely prejudicial and burthensome to the people; and it would not promote that justice, which could alone authorize such critical examinations. While therefore the justice confines himself within the line of his authority, I mean substantially and not formally, the good of the community requires that his proceedings should be supported by every reasonable construction in their favour.

The act of assembly which institutes these courts for the trial of small causes, in the first section consists of two parts. It makes all actions of debt or other demands (except certain species of action particularly specified) cognizable before a justice; and, secondly, it points out the manner in which they are to exercise this jurisdiction. This section embraces distinct objects. The first, that is the power or jurisdiction given, is the substance, and must not be exceeded; the second, that is the mode of execution, is formal and directory, and this part of the law should be more liberally expounded.

This distinction between the essential and the formal circumstances of a case was recognized by Lord Mansfield, 1 Burr. 447. in Rex v. Loxdale, and the case of Rex v. Sparrow, 2 Str. 1123. is cited by him as confirming this idea.

*74So by the stat. 27 Eliz. the party robbed, in order to recover against the hundred, is directed to go before some justice of the county, living within the county or near the same, and make an affidavit; yet a person going before a magistrate 20 miles off, though many justices nearer, was held to have complied with the act, because this part of it was merely directory, the substance being the making of the affidavit, (a)

These authorities are sufficient to show what I consider as clear law, that the substance of a statute in what respects the subject of jui'isdiction is one thing, the mode of execution, another: — the first cannot and ought not to be exceeded, buc it is not necessary to adhere so scrupulously to the latter.

Every party has clearly a right to agree to submit his cause to other judges than those the law has appointed for him.— The utility of these amicable references has been perceived and encouraged by the .Legislature, but it is a common law-right, which grew into notice under the encouragement of the courts.

The case cited, where by consent a jury of 6 men decided is not applicable: it was a case of jury, and the law expressly requires a Justice to summon a jury of twelve men. The court there very properly declared that consent could not authorize (a trial by) a jury of 6 men.

A number of cases might be referred to, in support of this opinion, one however will be sufficient. It is the King v. Gage, (b) that was a conviction on a penal statute. The defendant was convicted on the 5 Ann. c. 14. for using a greyhound in killing hares; Reeve excepted to this conviction because the statute gave justices jurisdiction to convict upon the oath of one or more credible witnesses, whereas this was upon defendants own confession, which he insisted the justices had no power to take. The court however affirmed the conviction.

Let the Judgment be affirmed.