Page:Federal Reporter, 1st Series, Volume 8.djvu/515

UNITED STATES V. GBISWOLD. 501 �give the United States a lien, but only a priority of payment out of the property or assets of its insolvent debtor, after it has passed by a voluntary assignment, or by operation of law, to a third person for the benefit of creditors or with the intent to defeat such priority. �By the statute, this priority only takes eSeot in four classes of cases : �(1) The death o£ a debtor without sufflcient assets to pay his debts; (2) bankruptcy or insolvency manifested by some act pursuant to law ; (3) a vol- untary assignment by an insolvent debtor of all his property to pay his debts; (4) the attachment of the property of an absent, concealed, or absconding debtor. U. 8. v. Fisher, 2 Cranch, 390; Conrad v. Atlantic Ins. Go. 1 Pet. 438; Btmion v. F. B. of D. 12 Pet. 133; U. 8. v. McLellan, 3 Sumn. 350; U. 8. v. Canal Bank, S Story, 81; 1 Kent, 247; Conk. Treat. 722. �Mere inability to pay, or a sale or a mortgage of a part of the debt- or' s property, is not sufficient to set the statu te in motion; but the insolvency, if not established by legal prooeedings resulting in the appointment of an officiai assignee, must be accompanied by a volun- tary asBignment of substantially all the debtor' s property. So long as it remains in his own hands, any partial sale, transfer, or pledge of it does not bring the case within this statute. Nor is a sale or mort- gage for a present consideration, and not on account of a pre-existing debt or obligation, an assignment, technically speaking, or within the spirit or meaning of the statute, which contemplates that the debtor shall thereby divest himself of his property for the benefit of one or more of his creditors. An assignment implies the relation of debtor and creditor between the assignor and those to be benefited thereby, and that the consideration therefor is an existing debt or liability. Bur. on Assignm. §§ 3, 4. �But an assignment may be made within the statute by one or more instruments to one or more persons at different dates, provided the circumstances warrant the conclusion that they are all the resuit of a pre-existing purpose to assign the insolvent's property for the benefit of his creditors. Downing v. Kintzing, 2 S. & E. 326. So far as this case is concerned, the question of Griswold's insolvency is not aSected by the fact that he was adjudged a bankrupt in 1868, as the United States was not then his creditor; and even admitting, as the plaintiff claims, that his discharge was fraudulently obtained, still it is a valid and binding diseharge from the debts then owing by him, until set aside or annulled in a suit brought for that purpose, in the court where it was granted, by an injured creditor or the officiai Jassignee. Section 5120, Kev. St.; Nicholas v. Murray, 5 Sawy. 323. ��� �