[City of Georgetown v. The Alexandria Canal Company, &c.].

a public nuisance simply; but what, being so in its nature, is attended with extreme probability of irreparable injury to the property of the plaintiffs, including, also, danger to their existence; and on such a case, clearly established, I do not hesitate to say an injunction would be granted."

The principle is also distinctly asserted and acted on by Chancellor Kent, in the case of Corning and others v. Lowerre, 6 John. Chan. 439. In that case, a bill was filed for an injunction to restrain the defendant from obstructing Vestry street, in the city of New York, and averring that he was building a house upon that street, to the great injury of the plaintiffs, as owners of lots on and adjoining that street; and that Vestry street had been laid out, regulated and paved, for about twenty years.

The injunction was granted: the Chancellor said, that here was a special grievance to the plaintiffs, affecting the enjoyment of their property and the value of it. The obstruction was not only a common or public nuisance, but worked a special injury to the - plaintiffs.

The principle then is, that in case of a public nuisance, where a bill is filed by a private person, asking for relief by way of prevention, the plaintiff cannot maintain a stand in a court of equity; unless he avers ad proves some special injury.

let us now examine the pretenWho are they? Not, indeed, a

With this principle as our guide, sions of the appellants in this case. private person, but a corporation. They profess to come into court for themselves, and for the citizens of Georgetown. Now, it is not even pretended that, in their character of a corporation only, they have any power or authority given to them by their charter, to take care of, protect, and vindicate, in a court of justice, the rights of the citizens of the town, in the enjoyment of their property, or in removing or preventing any annoyance to it. Nor does such a power attach to them in their corporate character, upon any principle of the law in relation to corporations. The complainants, then, must, as in the case of private persons, to maintain their position in a court of equity for relief against a public nuisance, have averred and proved, that they were the owners of property liable to be affected by the nuisance, and that, in point of fact, were so affected, so as that they thereby had suffer ed a special damage. Now, there is no such 'averment in this bill. The appellants seem to have proceeded on the idea, that it appertained to them, as the corporate authority in

[City of Georgetown v. The Alexandria Canal Company, &c.] Georgetown, to take care of and protect the interests of the citizens. In this idea we think they were in error; and that they cannot, upon any principle of law, be recognised as parties competent in court to represent the interests of the citizens of Georgetown. Nor is the difficulty obviated by associating with them the citizens of Georgetown, as persons in whose behalf they sue. There are indeed cases,

in which it is competent for some persons to come into a court of equity, as plaintiffs for themselves and others, having similar interests: such is the familiar example of what is called a creditors' bill. But in that, and all other cases of a like kind, the persons, who by name, bring the suit, and constitute the parties on the record, have themselves an interest in the subject matter, which enables them to sue, and the others are treated as a kind of co-plaintiffs with those named, although they themselves are not named: but in this case, it has been already said, that the appellants have no such interest as enables them to sue in their own name, and consequently the whole analogy fails. Moreover, if the citizens of Georgetown were even parties on the record; the objection would equally lie against them, unless they could show a special damage as a ground to stand upon. With these views, we are of opinion that the decree of the court below, dismissing the appellants' bill, is correct; it is therefore affirmed, with costs.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the District of Columbia, holden in and for the county of Washington, and was argued by counsel; on consideration whereof, it is decreed and ordered by this Court, that the decree of the said circuit court in this cause be, and the same is hereby affirmed, with costs.

FRANCIS WEST AND OTHERS, APPELLANTS v. Walter Brashear.

A defendant in an appeal, using the copy of the record received from the circuit court lodged by the appellant, cannot have the appeal docketed and dismissed, under the 30th rule of the court; on the ground that the appellant has failed to comply with the 37th rule, which requires a bond to be given to the clerk of the Supreme Court, before the case is docketed. He must, to sustain a motion to dismiss the cause, produce the certificate of the circuit court stating the cause; and certifying that such an appeal has been duly sued out and allowed.

APPEAL from the circuit court for the district of Kentucky.

On a motion of Mr. Crittenden, counsel for the defendant, to dismiss the appeal.

Mr. Chief Justice TANEY delivered the opinion of the Court.

In this case an appeal has been taken from the decree of the circuit court for the eighth circuit, and a copy of the record in due form has been lodged by the appellants with the clerk. But the case has not been docketed, because the appellants have not filed the bond to secure the fees to the clerk of this Court, prescribed by the rule No. 37, adopted at January term, 1831.

Upon the record brought here as abovementioned, the appellee has moved the Court for leave to docket and dismiss the case, under the 30th rule. We think this cannot be done. The appellee, upon producing the certificate from the clerk of the circuit court, as required by the 30th rule of this Court, stating the cause and certifying that such an appeal had been duly sued out and allowed, will be entitled to have the case docketed and dismissed. But this cannot

be done on the record brought here by the appellants.

The motion is therefore overruled.

GEORGE BEASTON, GARNISHEE OF THE ELKTON BANK OF MARYLAND V. THE FARMERS' BANK OF DELAWARE.

Priority of the United States. From the language employed in the fifth section of the act of congress of March 3, 1797, giving a priority to debts due to the United States, and the construction given to it by the Supreme Court; these rules are clearly established: First, That no lien is created by the statute. Second, The priority established can never attach while the debtor continues the owner, and in ́the possession of the property, although he may be unable to pay all his debts. Thirdly, No evidence can be received of the insolvency of the debtor, until he has been divested of his property in one of the modes stated in the section. Fourthly, Whenever the debtor is thus divested of his property, the person who becomes invested with the title, is thereby made a trustee for the United States, and is bound to pay the debt first, out of the proceeds of the debtor's property.

All debtors to the United States, whatever their character, and by whatever mode bound, may be fairly included within the language used in the fifth section of the act of congress. And it is manifest that congress intended to give priority of payment to the United States over all other creditors, in the cases stated therein. It therefore lies upon those who claim exemption from the operation of the statute, to show that they are not within its provisions.

Corporations are to be deemed and considered persons within the provisions of the fifth section of the act of congress of 1797; and the priority of the United States exists as to debts due by them to the United States.

An attachment at the suit of the Farmers' Bank of Delaware was issued against the effects of the Elkton Bank, on the 24th of September, 1830, and under it were 'attached the funds of the Elkton Bank in the hands of one of its debtors. On the 8th day of July, 1831, an attachment was issed at the suit of the United States, the United States being creditors of the Elkton Bank, and it was laid on the same funds which had been previously attached at the suit of the Farmers' Bank of Delaware. The money thus attached by the Farmers' Bank of Delaware, in the hands of a debtor to the Elkton Bank, by legal process, before the issuing of the attachment in behalf of the United States, was bound for the debt for which it was first legally attached, by a writ, which is in the nature of an execution; and the right of a private creditor thus acquired, could not be defeated by the process subsequently issued at the suit of the United States. If the district court of the United States has a right to appoint receivers of the property of an insolvent bank which is indebted to the United States, for the purpose of having the property of the bank collected and paid over to satisfy the debt due to the United States by the bank; this would not be a transfer and possession of the property of the bank, within the meaning of the act of congress; and the right of the United States to a priority of payment, would not have attached to the funds of the bank.

The legislature of Maryland passed an act authorizing the stockholders of the Elkton Bank to elect trustees, who were to take possession of the funds and property of the bank, for the purposes of discharging the debts of the bank, and distributing the residue of the funds, which might be collected by them, among the stockholders. This, had the law been carried into effect, was not such an assignment

[Beaston v. The Farmers' Bank of Delaware.]

of all the property of the bank as would entitle the United States to a priority of payment out of the funds of the bank.

No one can be divested of his property, by any mode of conveyance, statutory or otherwise, unless, at the same time and by the same conveyance, the grantee becomes invested with the title. The moment the transfer of property takes place, the person taking it, whether by voluntary assignment, or by operation of law, becomes, under the statute, bound to the United States for the faithful performanoe of the trust.

The cases of The United States v. The State Bank of North Carolina, 6 Peters, 29; The United States v. Amedy, 11 Wheat. 392; 6 Cond. Rep. 362; The United States v. Fisher, 2 Cranch, 358; 1 Cond. Rep. 421; The United States v. Hooe, 3 Cranch, 73; 2 Cond. Rep. 458; Price v. Bartlett, 8 Cranch, 431; Conrad v. The Atlantic Insurance Company, 1 Peters, 439; Conard v. Nicholl, 4 Peters, 308; Brent v. The Bank of Washington, 10 Peters, 596; Hunter v. The United States, 5 Peters, 173: cited.

ERROR to the court of appeals of the eastern shore of Maryland.

This suit was commenced in the Cecil county court, of the state of Maryland, in September, 1830, by an attachment issued at the instance of the Farmers' Bank of Delaware against the Elkton Bank of Maryland. To this writ the sheriff in October, 1830, returned that he had goods and chattels, rights and credits of the defendants, the Elkton Bank of Maryland, in the hands of George Beaston, to the amount of five hundred dollars, to the use of the plaintiffs in the attachment.

In April, 1834, the counsel for the plaintiffs, and for Mr. George Beaston, agreed on the following statement of facts:

It is agreed, that in 1828, the United States instituted suit against the Elkton Bank, in the circuit court of the United States; at the December session, 1829, a verdict and judgment were rendered in said suit, in favour of the United States, for twenty-one thousand two hundred dollars; on which judgment, a fi. fa. was issued to April term, 1830, and returned nulla bona: but it is admitted that, at that time, the said president and directors of the Elkton Bank had a large landed estate, which has since been sold and applied to satisfy, in part, the said judgment; which landed estate, together with all other effects or property belonging to the bank, would not enable the bank to pay its debts:--and that the said property and effects are insufficient to pay the said debt due to the United States; and it is admitted, that the bank was then unable to pay its debts. An appeal to the Supreme Court of the United States was prosecuted, but no appeal bond given; and the judgment was affirmed in the Supreme Court,