FROM GRAFTON CIRCUIT COURT. In Samson v. Young, 50 N.H. 62, FOSTER, J., says, — "And we have no hesitation in holding that within the contemplation of the statute the court which takes jurisdiction of a cause, and takes judgment and execution thereon, may properly be said to try the case, notwithstanding it may, by its own authority, or by consent of parties, as in this case, have submitted the ascertainment of the damages, or some other collateral question involved in the case, to a commissioner, auditor, master, or referee, who for such purposes may properly be regarded as officer of the court."
I cannot see that the court may not with as much propriety be said to try the case when it submits the trial of all the facts to a referee, but still holds the determination of the law and the final disposition of the case in its hands. I think, therefore, that, for the purpose of issuing a certificate, the court in this case is to be considered the court which tries the case.
By Gen. Stats., ch. 222, sec. 12, — "If the cause of action, in any action of trespass, or trespass on the case, has arisen from the wilful and malicious act or neglect of the defendant the court or justice before whom the action is tried shall cause a certificate thereof to be made on *Page 506 the back of the execution issued in such action, and the defendant shall not be discharged on giving bond as provided in the preceding chapter."
The statute — Laws of 1874, ch. 97 — makes no provision for impeaching the referee's report, excepting in case of trials by jury. In such cases it is made evidence subject to be impeached; but where there is no jury trial it can hardly be doubted that, for all purposes connected with the disposition of the cause, the facts are to be taken as found by the referee. It would be very singular if, a judgment having been rendered on the referee's report finding the defendant guilty of a fraudulent misrepresentation, he should not for the purposes of that action be estopped to deny the facts of which the judgment was founded. The certificate is to be put upon the execution, and the question, therefore, cannot arise till after judgment.
It might possibly happen that the declaration would not show the wilfulness or malice on which to found the certificate, and it might be necessary for the question then to be determined from the facts proved before the judge who actually tried the case. But where the declaration alleges fraudulent misrepresentation as the gist of the action, and the defendant is found guilty, either by the jury or by the referee, and judgment is rendered on the verdict or the report, I think it must be held that, for all purposes connected with the disposition of that action, the defendant is bound by the judgment.
LADD and SMITH, JJ., concurred.
Exceptions overruled.