for alleged cruelty in their method of killing hogs, as such agents have a right to do under Laws 1867, c. 375, § 1, when an animal is tortured or needlessly mutilated, will not be granted, since the remedy at law is adequate and defendants are pecuniarily responsible for their acts.-Davis v. Society, 16 Abb. Prac. (N. S.) 73.

[e] (N. Y. Super. Ct. 1895) An injunction will not be granted against the threatened arrest of plaintiff on the ground that keeping open his billiard saloon on Sunday is a violation of the Sunday law, as plaintiff has an adequate remedy at law.-Kenny v. Martin, 32 N. Y. Supp. 1087, 11 Misc. Rep. 651.

[f] (N. C. Sup. 1877) Injunction does not lie to restrain a prosecution, where one has a sufficient remedy by an action for damages.-Cohen v. Commissioners, 77 N. C. 2.

[g] (Okl. Sup. 1895) Injunction will not lie to restrain a city and its authorities from enforcing by fine and imprisonment an ordinance requiring a license tax for public auctioneers, and providing that a violation thereof shall be punished by fine and imprisonment, since plaintiff has an adequate remedy at law.-Golden v. City of Guthrie, 41 Pac. 350, 3 Okl. 128.

3. Irreparable Injury or Interference with Property Rights.

[a] (Colo. Sup. 1898) A prosecution for violating an alleged void ordinance will not be restrained because of its working irreparable injury, since it is presumed that the ordinance, if invalid, will be adjudged so on the trial of the criminal charge.-City of Denver v. Beede, 54 Pac. 624, 25 Colo. 172.

[b] (Colo. App. 1892) A city which, by ordinance, requires a ditch constructed through lands embraced within the public domain of the United States, prior to such lands being embraced within the city limits, to be so confined and reconstructed, by fluming or otherwise, as to prevent washing and cutting away of property along the line of the ditch, may be enjoined from prosecuting the owner of such ditch for the violation of such an ordinance, such prosecution tending to impair vested rights, and inflict irreparable injury without authority of law.-Milling Co. v. Lee, 29 Pac. 1036, 2 Colo. App. 184.

[c] (Iowa, Sup. 1897) Proceedings to enforce a penal ordinance enacted by authority of the legislature are criminal, within the rule that the validity of a criminal statute will not be tested, nor its enforcement enjoined, by a court of equity, unless the party seeking such relief will otherwise sustain irreparable injury for which he has no plain, speedy, and adequate remedy at law. Ewing v. City of Webster City, 72 N. W. 511, 103 Iowa, 226.

[d] (N. Y. Super. Ct. 1882) Injunction may issue to restrain the police authorities of a state from arresting the servants of a manufacturer engaged in continuing the business of manufacturing on Sunday, thereby stopping his entire business, when it appears that this cannot be done without the destruction of property and irreparable loss and damage, even though the arrest is threatened under color of a state statute prohibiting work on Sunday except in case of necessity.-Iron Works Co. v. French, 12 Abb. N. C. 446.

[e] (Ohio D. C. 1881) Though equity will not interfere to prevent an illegal arrest, yet, where such arrest will be accompanied by interference with the property rights of plaintiff, an injunction will issue.-Ryan v. Jacob, 6 Wkly. Law Bul. 139.

[f] (Ohio Super. Ct. Cin. 1895) Equity has no jurisdiction to enjoin criminal prosecutions under a valid statute, though property rights are involved, and such prosecutions will result in irreparable injury to the complainant.Food Co. v. McNeal, 4 O. L. D. 356.

[g] (Ohio Super. Ct. Cin. 1895) Equity has no jurisdiction, on the ground that complainant is innocent of charges about to be maliciously preferred in the criminal courts by officers acting under a valid law, to enjoin their preferring and prosecuting the charges; and it is immaterial that the prosecutions affect property rights, and that the damages occasioned thereby may be irreparable.-Food Co. v. McNeal, 1 Ohio N. P. 266.

[h] (Tex. Civ. App. 1897) The writ of injunction cannot be invoked to

prevent the institution of criminal proceedings, except when such prosecution will affect property rights, for the preservation of which such writ is necessary, or to prevent repeated prosecutions wrongfully instituted for the purpose of vexing and harassing the defendant therein.-Yellowstone Kit V. Wood, 43 S. W. 1068, 18 Tex. Civ. App. 683.

4. Multiplicity of or Oppressive Prosecutions.

[a] (Colo. Sup. 1898) A prosecution for violating an alleged void ordinance will not be restrained to prevent a multiplicity of suits, since it is presumed that no further arrests will be made thereunder after it has been adjudged invalid.--City of Denver v. Beede, 54 Pac. 624, 25 Colo. 172.

[b] (Ky. App. 1885) Where plaintiff has been arrested 15 times under a city ordinance for occupying a highway to which he claims title, and fined in each case an amount too small to allow an appeal, an injunction will lie to prevent any further prosecutions until the question of title is determined.— Shinkle v. City of Covington, 83 Ky. 420.

[c] (N. Y. App. 1876) The court will restrain a prosecution at law when the injunction is necessary to protect defendant from oppressive and vexatious litigation.-Wallack v. Society, 67 N. Y. 23.

[d] (N. Y. Sup. 1877) Equity will not enjoin a court-martial from trying one subject to its jurisdiction, where he alleges as the only ground for relief that he has been tried on the same charge and that he apprehends that the second trial will be unfairly conducted.-Perault v. Rand, 10 Hun, 222. [e] (N. Y. Sup. 1896) The requirement of Laws 1896, c. 112, § 18, that, in case a person sells liquors in violation of the act, the excise commissioner shall enter upon his premises, and daily arrest and prosecute him, and procure an injunction restraining him from continuing in said business, dces not entitle such person to an injunction against the commissioner of excise, on the ground that it would require a multiplicity of suits to establish. his rights, as his rights may be determined in a single proceeding.-Balogh v. Lyman, 39 N. Y. Supp. 780, 6 App. Div. 271.

[f] (Tex. Civ. App. 1897) The writ of injunction may be invoked to prevent repeated prosecutions wrongfully instituted for the purpose of vexing and harassing the defendant therein.-Yellowstone Kit v. Wood, 43 S. W. 1068, 18 Tex. Civ. App. 683.

5. Prosecutions under Statutes and Ordinances Alleged to be Invalid.

[a] (U. S. C. C., Ind., 1897) When criminal prosecutions are threatened under color of an invalid statute for the purpose of compelling the relinquishment of a property right, the remedy in chancery is available, and a preliminary injunction may properly issue.-Central Trust Co. v. Citizens' St. R. Co., 80 Fed. 218.

[b] (U. S. C. C., Kan., 1890) Though a court of equity has no jurisdic ́ ́ ́n to enjoin purely criminal proceedings, injunction will lie against proceedings by a prosecuting attorney to prevent the agents of a nonresident importer from selling intoxicating liquors in the original packages in which they were imported, under a state law which, in so far as it prohibits such sales, is in violation of the interstate commerce clause of the federal constitution, since such proceedings are an interference with complainant's property rights under the constitution, for which, as provided by Rev. St. § 1979, an action at law or suit in equity may be maintained.-Bottling Co. v. Welch, 42 Fed.

561.

[e] (U. S. C. C., S. D., 1900) A court of equity has no jurisdiction to enjoin the commencement of criminal prosecutions against a complainant, although the statute under which their institution is threatened is unconstitutional.-Brewing Co. v. McGillivray, 104 Fed. 258.

[d] (Ala. Sup. 1857) Chancery has no jurisdiction to restrain quasi criminal proceedings on the part of the municipal authorities of a city for repeated violation of an alleged invalid ordinance.-Burnett v. Craig, 30 Ala. 135, 68 Am. Dec. 115.

[e] (Colo. Sup. 1898) A prosecution for violating a municipal ordinance will not be restrained because of the illegality of the ordinance, since that

fact is available as a defense to the prosecution.-City of Denver v. Beede, 54 Pac. 624, 25 Colo. 172.

[f] (Ill. Sup. 1887) Complainant was the owner of certain picnic grounds within the limits of defendant village, which passed an ordinance declaring public picnic grounds a nuisance, and providing a penalty for allowing their use for picnics, or any purpose whereby disorderly people are congregated. Complainant was prosecuted seven times for violating the ordinance. was convicted once, and the other suits were pending. Held that, where complainant had not established the invalidity of the ordinance, equity will not interfere by injunction to protect repeated acts of violation of it, and where there are valid provisions in the ordinance, nothing appearing to the contrary, it will be presumed he was prosecuted under them.-Poyer v. Village of Des Plaines, 13 N. E. 819, 123 Ill. 111, 5 Am. St. Rep. 494, affirming (1886) 20 Ill. App. 30.

[g] (Ill. App. 1888) A court of equity will not entertain a bill to restrain prosecutions under a municipal ordinance on the ground of the alleged illegality of such ordinance.-Skakel v. Roche, 27 Ill. App. 423.

[h] (Ind. Sup. 1891) Where an ordinance prohibiting a gas company from carrying on its business except on certain conditions is void as to such company, its attempted enforcement by repeated prosecutions of the company's employés will be enjoined.-City of Rushville v. Rushville Natural Gas. Co., 28 N. E. 853, 132 Ind. 575, 15 L. R. A. 321.

[i] (N. Y. App. 1876) Equity will not restrain an action to recover a penalty imposed by statute, on the ground of invalidity of the statute, at least until its invalidity has been determined in a previous action.-Wallack v. Society, 67 N. Y. 23.

[j] (N. Y. App. 1876) An action to restrain a prosecution to recover a penalty imposed by statute, on the ground of invalidity of the statute, cannot be sustained as a bill of peace, when the plaintiff brings it in his own behalf, and not also in behalf of others claiming the same right.-Wallack v. Society, 67 N. Y. 23.

[k] (N. Y. Com. Pl. 1866) An injunction may be issued to restrain public officers from proceedings taken under an unconstitutional statute which involve the imprisonment of the plaintiff.-Hall v. Schultz, 31 How. Prac. 331. [1] (N. C. Sup. 1877) Injunction does not lie to restrain town officers from arresting and fining complainant for a violation of an unlawful town ordinance.-Cohen v. Commissioners, 77 N. C. 2.

[m] (Ohio Com. Pl. 1899) While a prosecution is pending against a saloon keeper for violation of a midnight closing ordinance, an injunction will not be granted to restrain subsequent prosecutions for subsequent violations thereof, unless the ordinance has been previously adjudicated invalid, or was so apparently void that it would be oppressive not to enjoin it.-Cavanaugh v. City of Cleveland, 8 Ohio Com. Pl. 329, 6 Ohio N. P. 423.

(113 Fed. 177.)

CITY TRUST, SAFE DEPOSIT & SURETY CO. v. GLENCOVE GRANITE

CO.

(Circuit Court of Appeals, Third Circuit. January 24, 1902.)

No. 15.

AFFIDAVIT OF DEFENSE-SUFFICIENCY-FORMER JUDGMENT.

Affidavit of defense, in action against T., as surety of C., on a bond conditioned to pay any judgment that plaintiff might recover against C. on a lien claim, is sufficient to present a prima facie defense, and prevent a summary judgment, where it alleges that plaintiff sued T. and C. in a New York court to recover such sum as might be determined to be due plaintiff from them under the bond; that said action was proceeded with fully and on its merits, and that it was there adjudicated that plaintiff could recover nothing against T.; and a judgment of the New York court is set out, finding for plaintiff against C., but finding that plaintiff was a foreign corporation, and had failed to prove that it had procured the certificate required to entitle it to do business in and sue in the state, and, as against T., dismissing the complaint. Dallas, Circuit Judge, dissenting.

In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.

Lincoln L. Eyre, for plaintiff in error.

Horace L. Cheyney and Laroy S. Gove, for defendant in error. Before ACHESON, DALLAS, and GRAY, Circuit Judges.

ACHESON, Circuit Judge. This writ of error is brought for the reversal of a judgment entered against the defendant below (the plaintiff in error) for want of a sufficient affidavit of defense. The Glencove Granite Company, a corporation of the state of Maine, on February 25, 1901, brought an action in the court below against the City Trust, Safe Deposit & Surety Company, a corporation of the state of Pennsylvania, upon a bond given to the plaintiff by Patrick Costello, as principal, and the defendant company, as surety, whereby the obligors jointly and severally undertook to pay to the Glencove Granite Company the amount of any judgment, not exceeding $8,279, which might be recovered in an action upon the claim or demand specified in a certain notice of lien filed by the plaintiff against moneys due Costello from the city of New York under a specified street-paving contract; and the plaintiff's statement of claim in this suit averred that the plaintiff brought an action in the supreme court of the state of New York, in the county of New York, to foreclose said lien, against said Patrick Costello, and that therein a judgment or decree was entered in favor of the plaintiff against Costello in the sum of $5,860.31, together with the sum of $402.22 costs,-in all, the sum of $6,266.53. The defendant. company filed an affidavit of defense, which averred that on or about May 5, 1899, the plaintiff, the Glencove Granite Company, brought suit against Patrick Costello and the City Trust, Safe Deposit & Surety Company in the supreme court of the county of New York, in the state of New York, to recover such moneys as might be in said suit determined to be due said Glencove Granite Company by

said Patrick Costello and said the City Trust, Safe Deposit & Surety Company by virtue of the terms and provisions of their bond sued upon in the present action; that the defendant company was served with process in said former suit, and entered an appearance in that action, and that the same "was duly proceeded with, fully and upon the merits thereof, for the same cause of action as now here and again sued upon, and between the same parties, with the addition of said Patrick Costello and the city of New York"; that after issue joined, in accordance with the practice and law of the state of New York, and by consent of all the parties, the case was tried upon all questions of fact and law before one of the justices of said supreme court without a jury; and that, in pursuance of the decision rendered in that proceeding, "a judgment was rendered by said court, and duly filed, in favor of the said the City Trust, Safe Deposit & Surety Company, and against the Glencove Granite Company, whereby it was adjudicated that the said Glencove Granite Company could not recover anything whatsoever against the City Trust, Safe Deposit & Surety Company, with a further order or judgment against said plaintiff for the payment of costs." And the affidavit of defense averred that said judgment "now stands unappealed from and unreversed, and as a final judgment in said cause." A rule for judgment for want of a sufficient affidavit of defense having been taken, the defendant company, "with leave of, and in pursuance of, the order of the court," filed a supplemental affidavit of defense, and, as part thereof, attached thereto a full and true copy of the judgment entered by the supreme court of the state of New York, referred to in the original affidavit of defense. Referring to this copy, we find that the judgment recites that the "issues in this action to foreclose a municipal lien against the defendant Patrick Costello, as contractor, and the defendant the City Trust, Safe Deposit & Surety Company of Philadelphia, as surety therefor," came on for trial before the Honorable Charles H. Truax, one of the justices of the court, who made and filed his decision, "wherein and whereby he found and decided that the plaintiff was, and still is, a foreign corporation organized under the laws of the state of Maine, and that the defendant the City Trust, Safe Deposit & Surety Company of Philadelphia was, and still is, a foreign corporation organized under the laws of the state of Pennsylvania, and lawfully transacting business in the state of New York; that, as against the defendant the said City Trust, Safe Deposit & Surety Company of Philadelphia, the plaintiff, the Glencove Granite Company, had failed to prove that it had procured from the secretary of state the certificate required by section 15 of the general corporation law, for the purpose of authorizing the said plaintiff to do business in, and sue in the courts of, the state of New York, as a foreign corporation; that the plaintiff cannot recover in this action against the bond of the said defendant the City Trust, Safe Deposit & Surety Company of Philadelphia, given to discharge the plaintiff's lien herein, and that the complaint of said plaintiff, as against said defendant, be dismissed, with costs to said defendant the City Trust, Safe Deposit & Surety Company of Philadelphia, against said plaintiff"; and then, after further recitals of findings by