Rowan County NcArchives Court.....Long, Vs. Beard 1811-18
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 12, 2008, 11:57 pm

Source: North Carolina Reports
Written: 1811-18

JULY TERM 1818.

LONG v. BEARD and MERRIL. 

From Rowan.

In equity.

When a party has relief at law and files his bill charging: that he cannot 
procure proof to proceed at law, and praying a discovery, a demurrer to such 
bill admits the fact of inability to make proof, and the bill must be 
sustained on the ground that there is no adequate relief elsewhere.

This cause came before the Court on an appeal of the defendants from the 
judgment and decree from the court below, overruling a demurrer to the bill 
and granting an injunction.

The bill as first filed stated that the complainant had for many years been 
proprietor of two ferries on the river Yadkin, established by the County Court 
of Rowan, and by means thereof made gains and profits, but that the defendants 
had opened a road to another point on the river, near the ferries of 
complainant; had set up direction boards at the forks of the roads, and 
informed the public that they, the defendants, kept a ferry over which 
travelers might pass toll free, and that they did transport and carry over the 
river many travelers, etc., to the injury of complainant; that defendants had 
petitioned Rowan County Court for a ferry, and the petition was refused, and 
this refusal was confirmed by the Superior Court of Rowan and the Supreme 
Court of the State, and that complainant was now prosecuting a suit at law 
against defendants to recover damages. The bill prayed an injunction.

Afterwards the complainant filed an amended bill, setting forth the orders of 
the County Court of Rowan, establishing his ferries, and charging that 
defendants had transported travelers, etc., for pay, and prayed a discovery as 
to the amount of their profits, which he had no means of proving, and an 
account. Defendants demurred to the bill, and on the argument below of the 
demurrer it was overruled and the defendants ordered to answer, and the 
injunction was continued until the answer.

Ruffin, J. Since this cause was decided in this Court (January, 1817) the 
complainant has amended his bill by charging that the defendants transport 
many persons and much property at their ferry for pay; as to the particulars 
or amount of which he is unable to procure proof. He has also appended to his 
bill the orders of the County Court of Rowan, by which his ferries were 
appointed and settled many years ago. The bill then prays a discovery, an 
account since the commencement of the suit at law mentioned in his original 
bill and an injunction. To this amended bill the defendants appeared and put 
in a demurrer, whereupon the court upon motion awarded the injunction till 
further order of the court, and upon argument of the demurrer, overruled it, 
and ordered the defendants to answer. From those orders and decrees there is 
an appeal to this Court. The case certainly stands upon different grounds, in 
many respects, from what it formerly did. The complainant has now appended his 
title and thereby shown that he has the exclusive right to a ferry, which the 
defendants have violated in direct opposition to the provisions of the acts of 
Assembly, 1764, ch. 3, sec. 4, and 1787, ch. 16, sec. 1. The defendants have 
appealed and demurred, by which they admit all the allegations of fact made in 
the bill to be true. It is nevertheless contended that this Court ought not to 
interfere, because complainant has relief at law, and may make himself whole 
for the injury sustained in damages. A plain answer to that objection is that 
it is expressly charged in the bill, and admitted by the demurrer, that the 
complainant is unable to procure proof, so as to proceed at law, and therefore 
this Court must entertain this bill upon the common ground that there is no 
adequate relief to be obtained elsewhere. This consideration alone is 
sufficient to warrant the injunction, without adverting to the propriety of 
protecting the owner of a clear, legal, exclusive right in the enjoyment of 
it, against such violations of it as may be repeated every hour in the day, 
and continued for years to come, and without calling to the complainant's aid 
the ordinary rule which governs a court of equity, of assuming jurisdiction to 
avoid a multiplicity of suits. We are therefore unanimously of opinion that 
the injunction issue as ordered below, and that the decree be affirmed in toto.

Cited: Hoke v. Henderson, 14 N. C., 18; Baird v. Baird, 21 N. C., 538; Murray 
v. Shanklin, 20 N. C., 434; Halford v. Tetherow, 47 N. C., 398; Caldwell v. 
Neely, 81 N. C., 117; Pope v. Matthis, 83 N. C., 172.

Additional Comments:
North Caroline Reports, Vol. 6, Cases Argued and Determined in the Supreme 
Court of North Carolina, Reported by A.D. Murphey, Annotated by Walter Clark. 
1811 to 1813, Inclusive and at July Term, 1818. Reprinted by the State. E.M. 
Uzzell and Company, State printers and binders, 1910.

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