¶1This court has decided, in Nelson v. Ladd, 47 N. H. 343, which was an action for deceit in the sale of property, by affirming it to be free from incumbrance when the seller knew it was mortgaged for a large sum, that, the defendant being defaulted, the Judge might properly, without further proof, certify the act to be wilful and *64malicious within the meaning of sec. 16, ch.'266, of the Revised Statutes.
¶2In expressing the opinion of the court, Mr. Justice Bellows said: “ By the default, the defendant confessed the truth of the allegations ; and we think the court would be fully justified in making the certificate upon that ground. The charge was for deceit; for a false affirmation of a clear title in himself, when he knew it was heavily incumbered. Such an act may well be regarded as both wilful and malicious. He knew his statement to be false, and his purpose must have been to defraud the plaintiff. It was equivalent to obtaining money by false pretences ; and in this State it would be an indictable offence.”
¶3In Nelson v. Ladd, the defendant being defaulted, the court, appointed the clerk commissioner to assess damages. The commissioner understood his commission to be for the assessment of damages merely ; and although the commissioner, at the plaintiff’s request, reported to the court the facts, as grounds of his application for a certificate on the execution, yet it is manifest the certificate was granted upon reference only to the confession made by default, to the allegation of fraud and deceit contained in the declaration.
¶4In the present case the submission to the referees is of the “ question of damages” merely. We take parties to mean, ordinarily, what they say — and when they use the term damages, instead of the term “ liability” or its equivalent, we cannot suppose they intend to submit the question of the defendant’s guilt or innocence of the act alleged in the declaration, but only the question how much be shall be' required to pay to the plaintiff, on account of the trespass confessed. If the terms employed were (as they are not) equivocal, the fact that the parties in their submission have avoided the usual form adopted in references under the common rule, whereby the parties declare that they refer “ the cause,” is a pretty clear indication that in using the term damages in this instance, they meant what they said.
¶5Such being the case, the defendant’s assent to judgment upon the award of the referees, without objection, is as much a confession of the truth of the plaintiff’s allegation as a default would have been. The wrong thus confessed is a confession that the defendant was guilty of the crime of adultery ; and it would require no exhibition of the particulars, by evidence before the court, to convince the tribunal that the offence was wilful and malicious. The confession imported by the submission of the question of damages, merely, to the award of the referees, is incompatible with any such excuse or extenuation as could take the case out of the purview of the statute.
¶6It is objected by the defendant that the statute empowers the tribunal, only, which tries and determines the facts upon all the evidence submitted, to malm the certificate; hut referees have no power in themselves, and as an independant tribunal, to issue executions, or to require a certificate to be placed thereon; and we have no hesitation in holding that, within the meaning “and contemplation of the statute, the court which takes jurisdiction of a cause and renders judgment and execution thereon, may properly be said to try the case, notwith*65standing 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 officers of the court.
¶7Upon the whole, we think the case of Nelson v. Ladd is decisive of the questions presented by this case, and we are entirely satisfied with that decision. Exceptions overruled.