The surrogate of Montgomery county has ordered the real estate of Fox to be sold for the payment of his debts. The sale has been made, and the proceeds are in the hands of the surrogate for distribution.

The surrogate has ordered the usual order requiring all persons having claims or demands against the estate of the deceased to exhibit and prove the same before him, and for distribution of the fund among the creditors.

The relator filed with the surrogate, papers showing that he had the equitable claim before mentioned, and that an action therefor was pending in the Supreme Court, and he insisted to the surrogate, and now claims, that the surrogate had no jurisdiction to compel him to submit his equitable claims to adjudication in the surrogate's court, and that they, being the subject of an action pending in the Supreme Court, could not be withdrawn from the jurisdiction of that court, and that the surrogate should be restrained from adjudicating upon his claim and from distributing the fund, until the relator's claim shall have been adjudicated upon in his action pending in the Supreme Court. He also claims that the proceeds of the sale of the real estate of Fox are impressed with a trust for the payment of the judgments before mentioned, in preference to the claims of other creditors.

For the purpose of enforcing these positions he instituted the present proceeding. He obtained an alternative writ of prohibition, directed to the surrogate and to the executor, prohibiting them from proceeding in the matter of proving, examining, deciding upon or intermeddling with the claims of the relator so pending and awaiting adjudication in the Supreme Court.

The alternative writ was granted upon affidavits in support of the allegations of the relator, and showing that the fund in the hands of the surrogate was insufficient to pay all the claims against the estate, including those of the relator. The respondents having made their return to the alternative writ, the application for a peremptory writ was heard at Special Term on the alternative writ and return, and an order was made denying the application. That order was affirmed at General Term and the relator appeals to this court.

We do not deem it proper to pass now upon the claims to equitable relief set up by the relator and argued in the elaborate points which he has submitted, nor upon the question of the jurisdiction of the surrogate in the matter, for the reason that we are of opinion that the decision of the Supreme Court denying the writ of prohi

bition is not reviewable in this court. The writ of prohibition is an extraordinary remedy, and should be issued only in cases of extreme necessity, and not for grievances which may be redressed by ordinary proceedings at law or in equity, or by appeal, and it is not remandable as a matter of right but of sound judicial discretion, to be granted or withheld, according to the circumstances of each particular case.

It being discretionary with the Supreme Court whether to grant or deny the writ, its order refusing to grant it is not appealable to this court.

The appeal must be dismissed, with costs against the relator.

Appeal dismissed.

All concur, except MILLER and TRACY, JJ., absent.

A judgment awarding a prohibition is, however, appealable, since it deprives the individual of the right to sue. Appo. v. People, 20 N. Y. 531, supra.

CHAPTER XII.

THE INJUNCTION.

I. AN EQUITABLE NOT A LEGAL REMEDY.

DOWS V. CITY OF CHICAGO.

Supreme Court of the United States. December, 1870.
11 Wall. 108.

Appeals from decrees of the Circuit Court of the United States for the Northern District of Illinois in two suits; one original, the other a cross suit.

A demurrer was interposed to the bills, original and cross. The Circuit Court sustained the demurrers to both, and the complainants in the two cases electing to abide by their bills, the court entered decrees dismissing the bills. From these decrees appeals were taken.

Mr. Justice FIELD delivered the opinion of the court.

According to the view we take of this case, it is unnecessary to consider the force of any of the objections urged by the appellants to the decrees rendered. Assuming the tax to be illegal and void, we do not think any ground is presented by the bill justifying the interposition of a court of equity to enjoin its collection. The illegality of the tax and the threatened sale of the shares for its payment constitute of themselves alone no ground for such interposition. There must be some special circumstances attending a threatened injury of this kind, distinguishing it from a common trespass, and bringing the case under some recognized head of equity jurisdiction before the preventive remedy of injunction can be invoked. It is upon taxation that the several States chiefly rely to obtain the means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible. Any delay in the proceedings of the officers, upon whom the duty is devolved of collecting the taxes, may derange the operations of government, and thereby cause serious detriment to the public.

No court of equity will, therefore, allow its injunction to issue to restrain their action, except where it may be necessary to protect the rights of the citizen whose property is taxed, and he has no adequate remedy by the ordinary processes of the law. It must appear that the enforcement of the tax would lead to a multiplicity of suits, or produce irreparable injury, or where the property is real estate, throw a cloud upon the title of the complainant, before the aid of a court of equity can be invoked. In the cases where equity has interfered, in the absence of these circumstances, it will be found, upon examination, that the question of jurisdiction was not raised, or was waived.

Our attention has not been called to any well considered case where a court of equity has interfered by injunction after its jurisdiction was questioned, except upon some one of the special circumstances mentioned.

The Supreme Court of Illinois is equally clear upon this question. In the case of Cook County v. The Chicago, Burlington and Quincy Railroad Company (35 Ill. 465), the subject was considered, and the court said that it had been unable to find any decision, in its previous adjudications, asserting a right to bring a bill to restrain the collection of a tax illegally assessed, without regard to special circumstances. It concludes an examination of its former decisions by stating, that while it was considered settled that a court of equity would never entertain a bill to restrain the collection of a tax, except in cases where the tax was unauthorized by law, or where it was assessed upon property not subject to taxation, it had never held that jurisdiction would be taken in these excepted cases without special circumstances, showing that the collection of taxes would be likely to produce irreparable injury, or cause a multiplicity of suits.

Upon principle this must be the case. The equitable powers of the court can only be invoked by the presentation of a case of equitable cognizance. There can be no such case, at least in the Federal courts, where there is a plain and adequate remedy at law. And except where the special circumstances which we have mentioned exist, the party of whom an illegal tax is collected has ordinarily ample remedy, either by action against the officer making the collection or the body to whom the tax is paid. Here such remedy existed. If the tax was illegal, the plaintiff protesting against its enforcement might have had his action, after it was paid, against the officer or

the city to recover back the money, or he might have prosecuted either for his damages. No irreparable injury would have followed to him from its collection. Nor would he have been compelled to resort to a multiplicity of suits to determine his rights. His entire claim might have been embraced in a single action.

We see no ground for the interposition of a court of equity which would not equally justify such interference in any case of threatened invasion or real or personal property.

The cross-bill filed by the bank presents different features. That institution insists that if it paid the tax levied upon the shares of all its numerous stockholders out of the dividends upon their shares in its hands, which it is required to do by the law of the State, or if the shares were sold, it would be subjected to a multiplicity of suits by the shareholders, and were it an original bill the jurisdiction of the court might be sustained on that ground. But as a cross-bill it must follow the fate of the original bill.

Decree affirmed in both suits.

SAGE AND OTHERS, RESPONDENTS, V. THE TOWN OF FIFIELD AND OTHERS, APPELLANTS.

Supreme Court of Wisconsin. January, 1887.
68 Wis. 546.

TAYLOR, J. The appellants insist that the circuit court erred in refusing to dissolve the temporary injunction-(1) because the complaint does not state facts which, if admitted to be true, would justify the court in granting the relief prayed for in the complaint, even if it were admitted that the electors of said town had no authority to vote a road tax upon the taxable property of said town exceeding the sum of $2,000.

Under the law requiring the highway taxes to be collected in money as other taxes are collected, it seems to us very clear that the duty of the supervisors as to making out warrants for the collection of such taxes is clearly abrogated; and if any duty remains on them as a board in fixing the amount of taxes to be raised for that purpose in the town, it is simply their duty, in the absence of any vote of the electors on the subject, to declare the number of