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Lewis Hergman and Adolph Alexander agt. Mority Dettlebach and others.

contemplated by the statute, have been seized in this proceeding under color of the attachment.

The statute provides that certain books and papers may be taken into possession under the process. (Vide, $$ 7, 8.)

Letters and correspondence are not among those authorized to be taken.

As the whole proceeding on the part of the deputy, in examining the books and papers, is grossly irregular, an order must be made, that the regular books of account of the firm, and its notes, policies of insurance, and all other securities and vouchers, be safely kept by the deputy sheriff, under lock and key, without power on the part of such deputy, or any other person, except the defendants, to look into or examine the same, except under the special order of the court, to be made on notice to the defendants.

The defendants and their counsel to be at liberty, at all reasonable hours, to examine, or take copies or abstracts from them, in the presence of the deputy.

All other papers, of every name and description, taken by such deputy, and all translations, or copies of such translations, if any, of the books, letters, vouchers or papers, must be delivered up forth with to the defendants' attorneys; and, to insure the same, such delivery must be made under an affidavit—to be made by such deputy, by the plaintiffs, and their attorneys and counsel—that, at the time of such delivery, such copies embrace every translation, or copy of such translation, or copy of such original which the deponent knows of, or believes, or has any reason to believe, exists; and the plaintiffs and their attorneys, agents and counsellors, are hereby restrained from in any way using such original books and papers, or using or disclosing the contents of such copies in any manner whatsoever, except by special order of the court.

This order must be complied with forth with, and is to be entered with costs of motion.

Woolsey agt. Judd and others.




It is doubtful whether the courts of the United States, under the act of congress

amending the several acts respecting copyrights, passed February 3, 1831, have power to restrain, by injunction, the publication of private letters con

trary to the wishes of the writer. The jurisdiction, however, which, under the act of congress, the federal courts may have acquired, has not impaired or affected the original jurisdiction of the

state courts. A court of equity cannot interfere to prevent the publication of private letters, merely on the ground that such a publication, without the consent of the writer, as a breach of confidence and social duty, is injurious to the interests

of society. The interference of the court can only be justified upon the ground that the writer has an exclusive property which remains in him, even where the let

ters have been transmitted to the person to whom they were addressed. Held, upon a full examination of the adjudged cases, that the law must be con

sidered as established, 1st. That the writer of letters, whether they are literary compositions, or fami

liar letters, or letters of business, possesses the sole and exclusive right of publishing the same; and that, without his consent, they cannot be published

either by the person to whom they are addressed, or by any other. 2d. That the receiver of the letters may, however, justify their publication, when

it is shown to be necessary to the vindication of his own rights or conduct,

against unjust claims or imputations. And lastly, That if the receiver attempt to publish the letters, or any parts of

them, against the wishes of the writer, and upon occasions not justifiable, a court of equity is bound to prevent the publication by an injunction, as a

breach of that exclusive property which the writer retains. Held further, that, as against a stranger who has possessed himself of the letters

or of copies thereof unlawfully, the right to restrain the publication by an injunction is absolute—such person not being justified in publishing the let.

ters for any purpose whatever. Held, that the cases of Wetmore agt. Scodell, (3 Edw. Ch. R., 515;) and of Hoyt

agt. M Kenzie, (3 Barb. Ch. R., 314,) in which it was decided that an injunction to restrain the publication of private letters, can only be granted when it appears that the letters possess a certain value as literary compositions, were a departure from the law as previously established, and ought not, therofore, to be considered as binding authorities. VOL. XI

Woolsey agt. Judd and others.

Before Oakley, Chief J.; DUER, CAMPBELL, Bosworth, HOFFMAN and Slosson, JJ. Decided March 7, 1855.

This was an appeal from an order at special term, dissolving an injunction, but continuing the same, if the plaintiff should appeal within ten days, until the hearing of the appeal.

The complaint stated in substance, that the defendants, by some unlawful means, had possessed themselves of a copy or copies of a certain letter, wholly private in its character, which the plaintiff had written and forwarded to one William Crowell, residing at St. Louis, in Missouri ; and that they had avowed their intention to publish the same in a weekly journal, called the New-York Chronicle, of which they were the editors, proprietors or publishers; and it prayed that they might be enjoined against printing, publishing, circulating, or in any manner, either by writing or otherwise, making public the said letter or any part thereof.

Mr. Justice CAMPBELL granted an injunction according to the prayer of the complaint; and the defendants moved, at special term, for its dissolution upon their answers, and upon affidavits.

The defendant, Judd, in his answer, denied that the letter in question was wholly private in its character; or, that by any unlawful means he had become possessed of a copy thereof. He averred that a copy of the letter was sent to him through the post office, accompanied by a note from a gentleman of the highest respectability, stating that he, the defendant, could make such use of it as he should think proper. He then alleged that the letter was not a literary production, nor of any value to the plaintiff as such; and, therefore, insisted that the court had no authority to restrain its publication, and demanded that the complaint should be dismissed with costs.

The answer of the defendant, McKay, was, in substance, the same.

The other defendants, Holman, Gray and Wilbur, denied, in their answer, that they or either of them, at the time of the commencement of the suit, or at any time since, had in their Woolsey agt. Judd and others.

custody or possession the said letter, or any copy thereof. They admit that they were the publishers of the weekly Chronicle, but averred that they had no control over it, nor any power to direct or prevent the publication of the plaintiff's letter.

It is needless to state the contents of the affidavits. It is sufficient to say, that the defendant, Judd, avowing himself to be the editor of the weekly Chronicle, claimed the right to publish the letter in question, for the purpose of fixing upon the plaintiff, and his correspondent, Crowell, the imputation of being the authors or instigators of certain anonymous and abusive publications, relative to a religious society, called “ The American Bible Union,” its proceedings, agents, and friends.

At special term, Mr. Justice HOFFMAN, holding himself bound by the decision of Chancellor WALWORTH in Hoyt agt. MKenzie, made the order appealed from.

The motion, upon the appeal for the reversal of this decision, was twice argued by

E. D. CULVER, for the plaintiff, and
W. W. Niles, for the defendants.

Upon the first argument, the counse, did not advert to an important section in the act of congress, entitled “ An act to amend the several acts respecting copyrights,” passed February 3, 1831. That section is in the following words :

Sec. 9, “ That'any person who shall print or publish any manuscript whatever, without the consent of the author first, obtained in writing, he shall be liable to an action for damages. And the several courts of the United States, empowered to grant injunctions to prevent the violation of the rights of authors, are hereby empowered to grant injunctions, in like manner, according to the principles of equity, to restrain the publication of any manuscript as aforesaid.” .

The second argument which was directed by the court, was confined to the questions, whether the provisions in the above section were applicable to private letters not intended to be Woolsey agt. Judd and others.

published ; and, if so, whether the jurisdiction of the courts of the United States, to restrain their publication, was exclusive.

By the court-DUER, Justice.-We think it a doubtful question, whether the act of congress of 1831, broad as its terms certainly are, was intended to apply, and ought, therefore, to be construed as applying, to cases like the present; but it is to the courts of the United States, that the decision of the question properly belongs. It is not necessary that we should decide it, since we are clearly of opinion that the jurisdiction which, under the act of congress, the courts of the United States may have acquired, has not taken away or at all diminished that which, before the passage of the act, the state courts might rightfully have exercised. The general rule is undoubtedly, that which is laid down and fully vindicated by General Hamilton, in the 820 No. of the Federalist-namely, that the state courts retain their jurisdiction in all the cases of which originally they had cognizance; and, in the application of this rule, the decisions in our own courts appear to have settled that there are only two classes of cases in which the jurisdiction of the courts of the United States may justly be regarded as exclusive. The first, where the jurisdiction is made exclusive by the express terms, or by the necessary construction of the provisions of the federal constitution. The second, when an act of congress confers a jurisdiction, that before its passage could not have been exercised at all—that is, when the act not merely confers, but creates the jurisdiction. (United States agt. Lathrop, 17 John., 5; Delafield agt. State of Illinois, 2 Hill, 159,-opinion of Bronson, J.; Dudley agt. Mahew, 3 Comst., 15.) It is obvious that to neither of these classes can we refer the case that we are now required to decide, if the views of the plaintiff's counsel, as to the original jurisdiction of the state courts, shall be sustained. If the jurisdiction we are called upon to exercise, was vested in the state courts before the act of congress was passed, it subsists unimpaired; and hence, it is upon the question of its prior existence that, in

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