of fact is to be determined upon affidavits, the papers are full of vague
and evasive allegations. Many important averments are upon information and belief. Proofs and presumptions are ingeniously intermingled. Facts which should appear are omitted, and facts which should not appear are stated. Indeed, the court is often confronted with such a wilderness of irreconcilable contradictions that a doubt not infrequently arises as to the correctness of the aphorism of the English jurist that "truth will leak out even from an affidavit." Regretting that this question must be determined upon testimony so incomplete and unsatisfactory, I am convinced that the weight of evidence is with the plaintiff. There is no direct proof that he went to Connecticut animo manendi. He positively denies that he changed his domicile, and asserts that he always intended to remain a citizen of New York. He is supported in this declaration by a number of collateral facts and circumstances. His case is, it ,would seem, not unlike that of many of the citizens of the metropolis who spend the summer months at their villas along the Connecticut and Rhode Island coasts. Though they remain away from the city the greater part of the year, they do not, therefore, lose theIr citizenship. It may be conceded that the question is not free from doubt, but to doubt in such circumstances is to remand the case to a tribunal which unquestionably has jurisdiction. Levy v. Laclede Bank, 18 Fed. Rep. 193; Gr'ibble v. Press Co., 15 Fed. Rep. 689; Wolffv. Archibald, 14 Fed. Rep. 369. Should the court retain jurisdiction, this question, under the provisions of the fifth section of the act of March 8, 1875, may again assert itself in a manner which will prove disastrous to the interest of both parties. The motion is granted.
LARMON and others.
No D. illinois. October 19, 1885.)
SALE-REDEMPTION-JUDGMENT ON NOTE GIVEN FOR CLAIM BARRE]) BY BANKRUPTCY PROCEEDINGS.
A redemption from an execution sale made on a judgment obtained upon a note given in payment of a valid indebtedness that has been assigned to the judgment creditor for value, although such indebtedness has been discharged by a yroceeding in bankruptcy, will not be set aside at the suit of another bona ]tde judgment creditor. ·
In Equity. Geo. W. Smith, for complainant. Nelson Monroe, for defendants. BLODGETT, J. There is no dispute about the material facts in this case, and only a single question of law arises upon the conceded
THAI. V. LARMON.
facts. It appears that on tile twenty-ninth of September, 1876, one Ivan Bauwen recovered judgment in the su perior court of Cook county against Philip Larmon for the sum of $683.78 and costs. An execution was issued on this judgment and returned unsatisfied, so as to keep the lien of the judgment alive for the term of seven years, and on January 13, 1883, an execution was issued to tpe sheriff of Cook county, and levy made upon a tract of land in Cook county owned by the defendant Philip Larmon, or in which he had an interest. On May 7, 1883, under this execution and levy, the sheriff sold the land to Bauwen, the plaintiff in the execution, for $975. No redemption was made from this sale by Larmon, the defendant in the judgment. On May 16, 1884, a judgment was rendered in the superior court of Cook county, by confession, against Larmon, in favor of John S. McClure, for $8,636.90 and costs; and, on the same day, an execution was issued on this judgment to the sheriff of Cook county, who levied such execution on the land so sold under the Bauwen execution. Thereupon the plaintiff, McClure, paid to the sheriff the amount necessary to ,redeem from the Bauwen sale, and the sheriff proceeded to advertise the property for sale under the last levy, and on June 9th sold the property for the sum of $8,771.31, of which $1,055.17 was indorsed by the sheriff as the amount necessary to redeem, and the balance of the amount bid was applied upon the execution under which redemption was made. On February 21, 1878, one George C. Morton recovered judgment in the circuit court of Cook county against Larmon for $671 and costs, on which execution was duly issued and returned unsatisfied, so as to keep the lien of that judgment alive; and on May 5, 1883, the plaintiff, Samuel ThaI, obtained an assignment of this judgment from Morton. On May 23, 1883, which was after the sale on the Bauwen execution, the complainant caused a levy to be made on the same land which had been sold under the Bauwen sale. The complainant filed this bill after the redemption by McUlure 'to set such redemption aside on the ground that it was fraudulent as against him, the chief ground for the allegation of fraud being that in May, 1878, Larmon was adjudged bankrupt in this district, and was duly discharged from his debts; that among his liabilities was a decree in this court in favor of the Franklin Savings Bank, of Pawtucket, for over $6,000; that McClure obtained an assignment of this decree for $50; and that this decree was the only pretext of an indebtedness due from Larmon to McClure, and the. only consideration for the note on which McClure's judgment was taken. It may be conceded that, if judgment is entered upon a note which was wholly void and without consideration under such circumstances as that, there could be said to be no indebtedness between the judgment debtor and the plaintiff in such judgment, a redemption made under such a judgment may be set aside a.t the suit of a bonafide judgment creditor. Martin v. Judd, 60·Ill. 78; Arnold v. Gifford, 62 Ill. 249. But the note in question was based upon the
consideration of a valid indebtedness against Larmon, which had been duly assigned to McClure for value, and, although this indebt· edness had been discharged by a proceeding in bankruptcy, yet it was a sufficient consideration for a new promise by Larmon to pay it. Classen v. Schoenemann, 80 Ill. 304; St. John v. Stephenson, 90 Ill. 82; Kallenbach v. Dickinson, 100 Ill. 427. McClure, as the assignee of this indebtedness, had all the rights of the original creditor, and a promise to him to pay was as valid as if made to the original creditor. The moral obligation which supports this promise is to pay the debt to whomsoever it may be payable. It seems very clear to me, therefore, that there was ample consideration to support this McClure judgment. It is conceded that McClure purchased this old decree in the interest of Mrs. Larmon, the wife of Philip Larmon, and that the redemption was made by him as trustee for Mrs. Larmon and for her benefit. This circumstance is of itself suspicious, and might naturally suggest that the redemption was really and solely for the benefit of Philip Larmon; but the proof shows that the money to purchase the decree, and that to make the redemption, came solely from Mrs. Larmon, and none of it came from Mr. Larmon, and fully explains whatever suspicions naturally arise from the relations of the parties. With this proof fully rebutting all presumptions or suggestions of fraud, I cannot do otherwise than hold that the judgment on which this redemption is made was valid. The law allows a debtor who has been relieved from his debts by proceedings in bankruptcy to pay such debts, and enforce a subsequent promise to make such payment; and the bankrupt can elect whether he will pay a part or all of the debts from which he has thus been relieved, he being the sole judge as to the extent to which he will revive such indebtedness. And, in the light of this rule, I can see no reason why a bankrupt may not place one of his creditors, whose claim is barred by the discharge in bankruptcy, in a position to redeem as a judgment creditor after the expiration of the time when the assignee of the bankrupt could made redemption. The of this state, section 24, c. 77, gives judgment creditors a right to redeem in the order of their seniority, and at the time this redemption was made the time allowed complainant to redeem had expired, and no other judgment creditor has challenged McClure's right to redeem. The Illinois cases fully hold that a judgment may be confessed by the debtor after the ex· piration of his own right to redeem in order to give a creditor the right to make redemption. This complainant lay still and allowed his own right as a senior judgment creditor to lapse, and therefore it does not lie in his mouth now to insist that a later judgment creditor bad no right to redeem. The bill is dismissed for want of equity.
BALDWIN f1. BAIRD.
(Oircuit Court, N. D. Illinois. October 19,1885.
CONTRACT-SALE OF COPYRIGHTED BOOK.
Contract construed, and lteld violated by the sale by defendants of a book infringing the copyright of complainants, or of the orIginal copyrighted work in territory allotted to complainants.
J. L. High, for complainants. J. B. Lwke and E. L. Jayne, for defendants.
BLODGETT, J. The bill in this case charges that the complainants are owners of copyright of a work entitled "Gunn's New Family Physi. cian and Home Book of Health," the copyright of which was secured in the name of John C. Gunn and the firm of Moore, WHstach, Keyes & Co., and by an agreement between John C. Gunn and this firm the latter and their assigns have the exclusive right to manufacture and print said work, together with the exclusive right to vend said work in all the states north of the Ohio river, and north of the parallel of 36 degrees 30 minutes north latitude, the north boundary line be· tween the states of Pennsylvania and Maryland, commonly known as "Mason and Dixon's line;" that complainants have become possessed of all the rights of the firm of Moore, Wilstach, Keyes & Co. in said copyright and in said contract, and that the defendants, in violation of the rights of complainants, have printed, published, exposed for sale, and sold a work in one volume entitled "Gunn's Newest Family Physician and Home Book of Health, by John C. Gunn, M. D.," know" that the same is a copy from, and an infringement and piracy of, the said "Gunn's New Family Physician and Home Book of Health," se. cured by said copyright. The defendants in their answer admit the original copyright in the name of John C Gunn and Moore, Wilstach, Keyes & Co., but insist that the book they are publishing is no viola· tion of said copyright, and deny that complainants by said copyright are entitled to interfere with the book printed, published, and sold by defendants, and further insist that the contract between Dr. Gunn and Moore, Wilstach, Keyes & Co., for a division of territory, and giving said firm the exclusive right to manufacture said books, and the exclusive right of sale in the states and territories north of Mason and Dixon's line, has been abrogated by the refusal of the successors of said firm to manufacture said books at a reasonable rate for the use of the owners of the Gunn interest. The facts in the case as shown by the testimony are briefly these: In the latter part of the year 1857, Dr. John C. Gunn, then a resi. dent of Cincinnati, Ohio, being the author of a work entitled "Gunn's New Domestic Physician or Home Book of Health: A guide for fam. Hies, pointing out in familiar language, free from medical terms, tl:e