¶1The objection, that this case was improperly sent to an auditor, cannot, we think, be sustained. The claim is, that the parties, by an agreement of their own, created a tribunal to try their cause, which the law does not recognize, and whose proceedings cannot lay the foundation for any judgment of the court.
¶2The principle, supposed to be involved in this objection, is undoubtedly correct, and in its general application, of unquestionable importance. For no one pretends, that parties, of themselves, can create courts of justice, or judges, *116or other tribunals, or clothe them with legislative authority : these can be created only by the legislature. Arbitrators may be chosen by the parties, and clothed with such power and authority as they agree to, and their doings will, in that case, be as final and conclusive as the judgment of a court would be; not however, as the doings of a court, constituting an integral part of the judiciary of the state, but the court of the parties. The report of the auditor, in this case, cannot, as we think, be considered as an act unauthorized by the superior court.
¶3By the law of 1850, auditors' can be appointed, in actions of assumpsit, if the cause of action embraces matter of account. This declaration, certainly, may embrace such matter; for, it contains all the common counts, and the defendant is actually found liable for the hay of the plaintiff, which he took away, and subsequently used. Of course, in the preliminary stage of the trial, acting upon the record, as it stood, the court had full power to appoint an auditor. The court could not know, without a bill of particulars, what accounts, or charges, or claims, would be presented before the auditor. Besides, the parties agreed to the course pursued, and we cannot now hold, that the court wrongfully assumed jurisdiction, in reference to this matter.
¶4Moreover, as the contrary did not appear, and the parties, in open court, agreed, that it was a proper case to go to auditors, the court might well proceed upon that assumption, and the parties ought to be estopped from raising such an objection, after the result of a trial. Their agreement was made, on purpose to facilitate the trial over which the court had jurisdiction, and why should not the parties abide by it ? The case is not unlike one of frequent occurrence in our courts, where the parties are held to waive an objection to the judge, commissioner, juror, or the panel of jurors, by the course pursued. Eleven jurors do not constitute a full panel, but they may be treated as a full panel, by the agreement of the parties. So, informal testimony may be *117received on the trial, and it is no uncommon thing for a judge, the parties wishing it, to refer a matter to a member of the bar, on the spot, to examine and report the facts, and then himself adopt the report, as his own finding. In this instance, Mr. Peet, a member of the bar, was agreed upon, to find and report the facts in controversy, and he acted on such reference, for all concerned, in the capacity of an auditor. If he were not exactly and technically such, yet he may be treated as such. The parties appeared before him, tried their cause, and took each his chance for a finding in his favor. Now we ask, what jurisdiction, unknown to the law, or unsanctioned by it, is assumed in this instance, or what court, or judge, or trial, is created, contrary to the law ? The superior court, certainly, had general jurisdiction of the cause, and power to bring it to a conclusion, and slight irregularities in its proceedings, at the request of the parties, ought not to be received, to defeat the result arrived at. It may be true, that, on the trial before an auditor, the party may present his claim, or his defence, in an exceptionable and illegal manner, but, even if it were so in this case, this is not the exact objection urged by the defendant, and if it were, it cannot make the original appointment of the auditor erroneous, and unauthorized. In King v. Lacy, 8 Conn. R., 500, the court appointed an auditor, when the pleadings stood on a demurrer, yet the court held, that the party had waived the irregularity. In Selleck v. Sugar Hollow T. P. Co., 13 Conn. R., 453, the court say, that the objections to the qualifications of jurors may be waived. So in State v. Smith, 19 Conn. R., 494; Crane v. Daniels, 20 Conn. R., 332; Quinebaug Bank v. Leavens, 20 Conn. R., 87; Groton and Ledyard v. Hurlbut et al., 22 Conn. R., 178, similar principles are recognized, sustaining all that is held in this case.
¶5The plaintiff' contends, that he was no party to the supposed unfairness or fraud practiced by Williams, his tenant, and so, cannot be affected by it. In the opinion of the court, the plaintiff was a participator in the whole trans*118action, as the real owner, and is to be held responsible, as much as if he was the exclusive vendor.
¶6We think, also, that the partial failure of consideration of the note, can be set up in the defence. A.t this day, a cross action to obtain relief, in such a case as this, is not believed to be necessary,—the rule is much more liberal now, than it was formerly. It is our opinion, then, that the plaintiff was entitled to recover; but only for the amount of the hay which the defendant took away, and afterwards used. Beyond this, upon the evidence, we think the party not entitled to recover; for we hold, as to the rest, that the consideration failed. There is manifest error.
¶7In this opinion the other judges concurred, except Church, C. J., who was disqualified.
¶8Judgment reversed.