79 N.C. 48 | N.C. | 1878
We do not decide that a jury trial in such cases is a matter of right under the Constitution, because the question is not presented by the appeal. It was not denied but was allowed here, and it is from that order that the appeal was taken. As the statute before cited seems to place such references under C. C. P., sec. 192, within the control of the Court by declaring that the damages may be ascertained as the Judge may direct, certainly there is no inhibition against the course adopted by him in a case where the facts, as here, are complicated and many grave questions arise. (51)
We are of opinion that the Judge had the power to order the issues raised by the exceptions to be submitted to a jury, and that the making such order was but in performance and a part of the general order of reference. Whether all the charges allowed by the referee are or were intended to be covered by the undertaking, or whether the maxim applied by him that "no one shall take advantage of his own wrong" precludes the defendant from proof of benefits put upon the property while in its possession under the injunction order of the Court, are questions which do not now come before us.
We are of opinion that the undertaking is not void because it specifies no amount in which the signers to it are bound, and that the requirement of C. C. P., sec. 192, in that particular is only directory, as the sum to be fixed is for the benefit of the party enjoined, by satisfying him that it is large enough to cover the probable damages, and that he may see that the sureties are responsible men for the amount. The purpose is indemnity. The defendant here is satisfied with the undertaking and we do not see that the surety can impeach his voluntary undertaking.
PER CURIAM. Judgment affirmed.
Cited: Crawford v. Pearson,