authority to grant a license to one, and to re-lative power. The "legislative power of 66 66 We can find no escape from the conclusion that the legal effect of the act is to authorize the local officers of each municipality to grant exclusive privileges to such persons as they please in the transaction of a lawful business essential to the conduct of human affairs, and in which each citizen has an equal right to engage for the support of life. 2. Has the legislature power to enact such a law? The Constitution of Connecticut is somewhat peculiar in its limitation of legis those universally accepted as so essential to Upon the first establishment of government confined within the clear lines of legislative power that there has been no occasion to apply the limitations of the first section of the bill of rights. The nearest approach to a judicial determination on this subject is in Norwich Gaslight Co. v. Norwich City Gas Co. 25 Conn. 38, where the court holds that, if the law then under consideration can be fairly viewed as intended to operate as a discriminating restriction upon carrying on an ordinary business in respect to which the government has no exclusive prerogative, it comes directly within the definition of a monopoly, and may be obnoxious to the first section of our bill of rights. The application of the bill of rights, approved in that case is, plainly necessary to the decision of this. We entertain no doubt of its correct. ness, and feel bound to hold distinctly that an act of the legislature, the only legal effect of which is to grant exclusive privileges in the conduct of an ordinary lawful business, in respect to which the government has no exclusive prerogative, is obnoxious to the first section of the bill of rights, and void. There is, in respect to its validity, no distinction between such a law and one authorizing such privileges to be granted by subordinate officers in the exercise of a mere arbitrary discretion, wholly uncontrolled by law. thereof as threatening their ruin. The en- which it declares that all members of our pojoyment of such rights, however, was then litical society are equal in rights, and that recognized as due only to "every man in his " no man or set of men is entitled to exclusive place and proportion. Code 1650, p. 1. public emoluments or privileges from the The full recognition of the principle of community." Our legislation affecting any equality in rights, as well as of the neces-important interest has been so generally sity of protection by a fundamental law, was of later growth. In 1672 the right of every man to "enjoy the same justice and law within this colony" was recognized. Revision of 1672. These principles were embodied in a statutory declaration of rights, which remained substantially unchanged until the adoption of our Constitution. During the period preceding and following the Revolution, the conviction became general that equality under the law in the enjoyment of certain rights was so essential to free government that it must be defended against invasion even from the law-making power. In a proclamation issued June 18, 1776, Gov. Jonathan Trumbull expressed the conviction of the colony of Connecticut, in maintaining that the people "form themselves into society, and to set up and establish civil government for the protection and security of their lives and properties" from invasion by those "appointed by the people the guardians of their lives and liberties," and that the course of the King of Great Britain in "depriving us of our natural, lawful, and most importaut rights, and subjecting us to the absolute power and control of himself, and the British legislature," justified a rebellion. 15 Col. Rec. 450. And the declaration by Congress that equality under the law, in the right to life, liberty, and the pursuit of happiness, is a self-evident truth, was formally approved by this state November 7, 1776 (1 Rec. Conn. pp. 3, 243), and in August, 1777, was ordered to be recorded at length in the state records, "that the memory thereof may be preserved to posterity" (1 Rec. Conn. 367). It was an express purpose of our Constitution "effectually to define, secure, and perpetuate the liberties, rights, and privileges" derived from our ancestors, and we deem it clear that our bill of rights includes this principle of equality among those principles essential to liberty and free government, to establish The act upon which the information against the defendant is based, so far as its provisions relate to the right to engage in any lawful "temporary or transient" business, cannot operate so as to make engaging in such business a misdemeanor, and therefore the information does not show any legal offense. It is unnecessary to consider the other grounds on which the defendant demurred to the information. There is error in the judgment of the Superior Court, and it is reversed. The other Judges concur. MICHENER V. SPRINGFIELD ENGINE & THRESHER Co. a surety was refused equitable re 3. A surety against whom a default judgment is taken, after which the principal's liability is discharged for failure of consideration, may file a bill under Rev. Stat. 1894, $627, to review the judgment against him for newly discovered matter, without disturbing that in favor of his principal. 4. A suit to enjoin a judgment against a surety will not lie on the ground that the principal's liability has been subsequently discharged, where a statute permits the surety under such circumstances to file a bill to review the judgment against him for newly discovered matter, without affecting that in favor of his principal. (April 26, 1895.) of defendants in an action brought to enjoin the enforcement of a judgment. Reversed. The facts are stated in the opinion. Messrs. Bell & Purdum, C. N. Pollard, and Morrison & Holman, for appellant: The discharge of the principal in an obligation discharges the surety or indorser from such obligation, even after a judgment has been taken against him upon default, and he is entitled to injunctive relief to prevent the enforcement of the judgment. Brandt, Guaranty & Suretyship, 1st ed. $125, 2d ed. 149; Ames v. Maclay, 14 Iowa, 281; Beall v. Cochran, 18 Ga. 38: Miller v. Gaskins, Smedes & M. Ch. 524; Dickason v. Bell, 13 La. Ann. 249; Cowley v. Northern P. APPEAL by plaintiffs from a judgment of R. Co. 46 Fed. Rep. 325; Nealis v. Dicks, 72 Circuit Court for Howard County in favor Ind. 374; Buskirk, Pr. 313; Elliott, Appellate 288. lief of injunction against a judgment by default | not authorize an injunction, as he has a remedy by rendered against him, where the principals success- action of nullity or appeal. Cook v. State, 16 La. fully resisted and prevented a judgment against them on the ground of failure of consideration, as he had adequate remedy of review under Ind. Rev. Stat. 1894, §627, providing that any person who is a party to a judgment may file in the court where such judgment was rendered a complaint for a review of the same. This is in accord with the general doctrine. I. Against sureties. a. Remedy at law as a bar to injunction. Where there is an adequate remedy at law in the trial court, or by proceedings in error or on appeal, or by affidavit of illegality, an injunction will not be granted in favor of a surety against a judgment. So, where a surety claims that he is released and the plaintiff moves for leave to issue execution on the judgment, the surety cannot enjoin such proceedings on the judgment, as he can obtain relief in the other proceedings. Martin v. Orr, 96 Ind. 27. And in Gilder v. Merwin, 6 Whart. 522, it was held that a surety cannot obtain an injunction against a judgment on the ground that since the judgment he has discovered that he was relieved by an extension granted to the principal, where he has an adequate remedy at law by application to open the judgment. And the failure of a creditor to prove up his claim on a note against the estate of the deceased maker thereof will not authorize a surety to enjoin a judgment on the note obtained by such creditor against himself, as he might have paid off the claim and proved up the same, or had himself appointed administrator if none had been appointed. Grindol v. Ruby, 14 Ill. App. 439. So, a surety is not entitled to an injunction against a judgment on the ground that his liability is only secondary, where he has an adequate remedy by paying the debt and suing the principal for reimbursement. Stein v. Benedict, 83 Wis. 603. And an injunction will not be granted against the levy of an execution issued on a judgment on a forged replevin bond in an action of trespass, on the ground that the surety never had his day in court on the question of forgery, where there is a remedy by affidavit of illegality. Rounsaville v. McGinnis, 93 Ga. 579. And the sureties on a claim bond cannot enjoin proceedings on an execution on the ground that the plaintiff and defendants in attachment tried that case with another, where they were not prejudiced and there is an adequate remedy in the court from which execution issued. Trieste v. Enslen (Ala.) 17 So. 356. And that a surety on a bail bond had no notice or copy of the judgment nisi served on him will Under Mansf. (Ark.) Dig. § 2435, authorizing a judgment in case of conviction against the principal and surety on a supersedeas bond without notice, where such judgment in a criminal case is rendered at a subsequent term without notice the same will not be enjoined, because if void there is a remedy by appeal, and if not void equity will not interfere. Shaul v. Duprey, 48 Ark. 331. A surety is not entitled to an injunction against a judgment rendered against him and his principal, on the ground that his principal was not served with process, as the remedy is by motion in the case. Mason v. Miles, 63 N. C. 564. b. Valid defense must be shown. A surety is not entitled to an injunction against a judgment, where he does not show a valid defense to the same. An execution will not be enjoined on the ground that an entry was not made upon the execution showing who was principal and who was surety, where the judgment was against several joint makers of a note, as such entry is not required by law, although one of the parties was a surety. Work v. Harper, 31 Miss. 107, 66 Am. Dec. 549. See Gatewood v. Burns, infra, I. c. And a surety on the forthcoming bond for property seized on execution cannot enjoin a judgment against him on the ground that his principal has made away with the property, as this is not a good excuse for nondelivery. Laughlin v. Ferguson, 6 Dana, 111. The surety on a note is not entitled to an injunction against the judgment thereon, on the ground that in another suit by the principal for an injunction against collection of the samedebt a judgment was rendered against the sureties on the injunction bond to which complainant was not a party. Gowan v. Graves, 10 Heisk. 579. An indulgence granted to a principal will not entitle his bail to an injunction where his conduct operated as an estoppel. Bay v. Tallmadge, 5Johns. Ch. 305. And a surety consenting to an indulgence granted to the principal cannot obtain an injunction against the judgment for the debt. Furber v. Bassett, 2 Duv. 433. And an injunction will not be granted against a judgment at law, on the ground that the defendant was a surety for plaintiff in another matter,and that he might thereafter be liable as such surety. Thomas v. Bush, 1 Bibb, 506. In Skinner v. Barney, 19 Ala. 698, it was held that a judgment at law would not be enjoined at. Procedure, §§ 132, 133, 135; Walker v. Heller, 90 Ind. 198. The court may decree the satisfaction of a judgment upon a complaint for that purpose. McOuat v. Cathcart, 84 Ind. 567; Bowen v. Clark, 46 Ind. 405. Messrs. Blacklige, Shirley, & Moon for appellees. pears from the complaint that John H. Kennedy, Benjamin E. Hockstedler, and Christian Kly, as principals, on December 1, 1888, executed three several promissory notes to the appellee company, amounting in the aggregate to $415, in consideration of a sale to them by said company of a separator engine and thresher of its manufacture; that, after the execution of said notes, appellant, Michener, wrote his name across the back of each as accommodation guarantor or indorser The appellant, James B. Michener. brought thereon; that after the maturity of the $140 this suit against the Springfield Engine & note it was paid by said principals; that Thresher Company and Edgar A. Simmons, afterwards, the next note falling due, callsheriff of Howard county, concluding with ing for $137.50, said payee brought suit on a prayer to enjoin an execution and judg- both of the unpaid notes against the princiment against him and for all just and proper pals and appellant as indorser, and on July relief, and for satisfaction thereof. It ap-12, 1890, appellant was defaulted, and judg McCabe, Ch. J., delivered the opinion of the court: the instance of a surety, on the ground that the | lating that the judgment should abide that in plaintiff therein is not the owner of the judgment, where such claim was not maintained by the evidence. The court does not pass on the question whether such a defense was valid or not. A surety on the bond of a trustee for creditors is not entitled to an injunction against a judgment thereon, on the ground that a claim against the estate was fraudulently allowed, as the surety is only liable for the assets, and is not prejudiced by errors in their distribution. Taylor v. Mallory, 76 Md. 1. So, a judgment against a surety was not enjoined where his principal procured his signature by fraudulent representations in which the plaintiff at law did not participate. Griffith v. Reynolds, 4 Gratt. 46. Service at defendant's place of residence while he was known to be absent from the state, and judgment rendered on the Fourth of July, which is a legal holiday, will not authorize an injunction against an execution on a judgment, where there is no statute prohibiting courts from sitting on the Fourth of July if it does not fall on Sunday, although complainant was a surety, and the plaintiff was notified to sue the principal and failed to do so, but assisted him in taking his property out of the state, and such principal was insolvent. Hamer v. Sears, 81 Ga. 288. And an injunction was refused against a judgment on a bond, although there was usury in another bond given by the principal to the same creditor, which was paid. Cantey v. Blair, 2 Rich. Eq. 46. So, where the principal paid interest in advance to propitiate the creditor, where there was no agreement therefor. Harnsbarger v. Kinney, 13 Gratt. 511. The collection of a debt against a surety was not enjoined although the creditor agreed, on request, to proceed against the principal debtor and failed to do so, where it was not shown that the surety was induced to forego some advantage which he would otherwise have taken. Wilds v. Attix, 4 Del. Ch. 260. An injunction will not be granted against a judgment on a replevin bond, on behalf of a surety who never signed it, where he acknowledged it to be under his hand and seal, and an innocent purchaser acquired the same without notice of the defect. Maupin v. Whiting, 1 Call (Va.) 224. Under Tex. Rev. Stat. art. 2874, providing that no injunction shall be granted to stay any judgment or proceedings except so much as the complainant shall show himself equitably entitled to be relieved against, an injunction will not be granted for failure of attorneys to plead that the obligors on a bond signed as sureties on conditions, where such defense would not have availed, or for stipu | another case, where the defense was not made known to the attorneys. Ballow v. Wichita County, 74 Tex. 339. c. In matters of negligence or for failure to make a legal defense. The negligence and failure of a surety to make a defense where the same would be good at law will prevent an injunction; and equitable relief has been denied where it was claimed on the ground of release, set-off, usury, indemnity, mistake, nonliability, secondary liability, or that plaintiff was not entitled to sue on account of his relation with the principal. So, an injunction will not be granted on the ground of new evidence, where complainant was negligent in making his defense at law. Floyd v. Jayne, 6 Johns. Ch. 479. And a surety failing to exercise any diligence in making or ascertaining his defense, or not excusing his lack of diligence, cannot obtain an injunction against the judgment. Smith v. McLain, 11 W. Va. 654; Smith v. Powell, 50 Ill. 21. The failure of a surety in an action at law to plead his discharge will prevent an injunction against the judgment. Jackson v. Patrick, 10 S. C. N. S. 197; Meek v. Howard, 10 Smedes & M. 502. So, a surety of a sheriff amerced for the failure of a deputy to return an execution cannot enjoin such judgment where he failed to defend at law. Bierne v. Mann, 5 Leigh, 364. And a surety having an opportunity to avail himself of the defense at law, of indulgence to the principal, and omitting to do so, cannot afterwards resort to a court of equity to obtain the benefit of such defense. Schroeppell v. Shaw, 3 N. Y. 446. So, a surety who fails to plead his discharge at law cannot thereafter enjoin such judgment, as this is a legal defense in Illinois whatever may be the rule in England. Parker v. Singer Mfg. Co. 9 Ill. App. 383. And the release of a surety by neglect "to sue the administrator of the principal" where the surety is injured, is a defense both in law and equity, and, not having been made at law, cannot afterwards be a ground for enjoining the judgment; and "a verbal request to sue without a resulting injury" to the surety does not afford any ground for equitable relief. Herbert v. Hobbs, 3 Stew. (Ala.) 9. A sale execution and proceedings on a judgment will not be enjoined at the instance of a surety claiming a release and that he was not served with process or did not appear, where he has neglected to avail himself of an affidavit of illegality through mistake of his attorney. Hambrick v. Crawford, 55 Ga. 335. And failure of a surety to make the legal defense ment was rendered thereon against him for $339.08 and costs, taxed at $21.90; that said judgment against him was based exclusively on his said indorsement of said notes; that Kennedy, Hockstedler, and Kly appeared, and thereafter made defense to said action, and at the March term of said court for 1892, upon the issues duly formed between them and said company, a trial thereof resulted in a verdict and judgment in their favor that the consideration of said notes had wholly failed, and that said plaintiff company take nothing by their suit, and that said defend ants recover their costs; that, notwithstand-in and sustain this ruling by assigning cross ing the full discharge of said principals by said judgment, which remains in full force, the said company is trying to collect said judgment against the appellant, and to that end caused an execution to issue thereon for the aforesaid amount thereof, and the aforesaid amount of costs, less a credit of $70, and placed the same in the hands of the sheriff of said county, Edgar A. Simmons, made a defendant in the complaint, which he still holds, and threatens to levy on the property of appellant, and to sell the same to satisfy said writ. The court overruled appellees' demurrer to the complaint, the demurrer being based on the ground of the alleged insufficiency of the facts in the complaint to constitute a cause of action. Appellees call error thereon. The appellee company moved the court to dismiss the cause for want of jurisdiction, which motion the court sustained, and dismissed the cause for want of of discharge of other sureties will bar him from | to sign it, and did not, where no defense of non est equitable relief from the judgment by a bill of factum was made at law or excused. Shields v.. discovery, as the bill of discovery should have McClung, 6 W. Va. 79. been filed as soon as judgment was taken, where no excuse is made for not filing it before the judgment was taken. M'Grew v. Tombeckbee Bank, 5 Port. (Ala.) 547. And the failure of a bail to plead his discharge to an action on a sci. fi. will prevent an injunction against the judgment obtained thereon. Allen v. Hamilton, 9 Gratt. 255. So, a surety after permitting a judgment, and after levy of execution, voluntarily uniting in withdrawing the effects of his associate from the operation of such process, and permitting a second judgment "for the validity and for the satisfaction of the demand," cannot then come into equity and have the judgment and execution enjoined on the ground that he was released by indulgence to the principal. Creath v. Sims, 46 U. S. 5 How. 192, 12 L. ed. 110. A surety cannot maintain an action for injunction on the ground of a set-off for money paid by him and a cosurety for plaintiff, where the amount paid by plaintiff is not stated and no reason given for not making a legal defense. Wolcott v. Jones, 4 Allen, 367. So, a surety asking for an injunction against a judgment containing usury must tender the amount loaned, with interest, as 1 N. Y. Rev. Stat. 772. § 8, Stat. 1837, p. 487, § 4, providing for a suit without any tender, only applies to a "borrower," besides the complainant should not have waited until after judgment. A further claim that the surety was discharged by an extension of time to the principal was held insufficient because not made at law and by two of the judges on the further ground that the agreement for extension was void being made for an usurious consideration. Vilas v. Jones, 1 N. Y. 274, Affirming 10 Paige, 76. So, the claim of a surety that he did not defend as he was a mere surety and was ignorant of the usury will not authorize an injunction against a decree on the ground of usury, as he should have been diligent and ascertained such defense. Moran Woodyard, 8 B. Mon. 537. So, where a surety obtained a judgment against his cosurety for contribution, and the defendant in that suit by a bill of discovery could have maintained the defense that the plaintiff had been fully indemnified, an injunction against the judgment was denied. Wright v. King, Harr. Ch. 12. And mistake of law as to bar of a debt by limitation will not authorize an injunction. Harner v. Price, 17 W. Va. 523. A surety was refused an injunction against a judgment on a bond for purchase money payable to court commissioners where the injunction was claimed on the ground that other sureties were Or against a judgment for money surrendered by a collector to the confederate government, where there was no forcible seizure, and no allegation of the loyalty of the collector, and there was negligence in not making a defense. Rogers v. Parker, 1 Hughes, C. C. 148. Or where he claimed that the principal should be first exhausted, but he did not have it determined, as he might have done, in the action at law, that he was a surety, under N. C. Code, §§ 2100, 2101, providing for such determination. Gatewood v. Burns, 99 N. C. 357. See Work v. Harper, supra, I. a. Under Swan's (Ohio) Stat. 482, providing that where a showing is made that one or more of the persons bound, signed as surety for his codefendant,the execution should direct the debt to be made out of a principal first, a surety who neglects to have the fact that he is such ascertained cannot enjoin an execution sale of his property on the ground that the principal must be first exhausted.. Elliott v. Elmore, 16 Ohio, 27. And a surety cannot have a judgment against him enjoined on the ground that his principal is the equitable owner of such judgment, where such defense was not made in the action in which the judgment was rendered and no excuse is given for failure to make it. Stein v. Benedict, 83 Wis. 603. An injunction will not be granted in favor of an indorser on a note against a judgment on such note on the ground that a bank-the real party in. interest-was prohibited from obtaining such bills by negotiation of its own paper, by the statutes of the state, where negligence is shown in not making such defense at law. Lee v. Insurance Bank, 2 Ala. 21. In Kelley v. Kriess, 68 Cal. 210, it was held that an injunction will not be granted where complainant neglected to defend the action at law or to prosecute a motion for a new trial. And that a defendant at law was a married woman and surety for her husband is not ground for enjoining an execution sale on the judgment, where such defense was not made at law or excused. Wilson v. Coolidge, 42 Mich. 112. But in Medart v. Fasnatch, 15 La. Ann. 621, it was held that an injunction may be obtained by a wife against the enforcement of a judgment against her and her husband jointly, on a debt made in fraud of the law, where she is surety for her husband, as the disability of the wife gives equity jurisdiction.. And in Bradshaw v. Combs, 102 Ill. 428, where a surety had been released by an extension granted to the principal without the consent of the surety, an injunction was granted against an execution. The question as to whether or not the defense was. |