Woolsey agt. Judd and others.

not alone to his observations in his treatise on equity jurisprudence, (2 Eq. Jur., §§ 945–948,) but also and principally to his elaborate judgment in Folsom agt. Marsh, (2 Story R., p. 100,) in which the question of property in private letters distinctly arose, and with great care was considered and determined. In the opinion of this eminent judge, the whole doctrine relative to the rights of property in letters, and the jurisdiction of equity to restrain their publication, together with the limitations to which the doctrine is properly subject, is lucidly stated, and in language which, (with a few alterations,) as the final expression of our own views and convictions, we shall now adopt. We hold, then, "that the author of any letter or letters, and his representatives, whether they are literary compositions or familiar letters, or letters of business, possesses the sole and exclusive right of publishing the same, and that without his consent the letters cannot be published, either by the persons to whom they are addressed, or by any other. But that, consistently with this exclusive right of the author, the person to whom the letters are addressed possesses, by implication, the right of publishing them upon occasions which require or justify the publication. Thus, he may justifiably use and publish them in a suit at law, or in equity, when such use is necessary or proper to maintain his action or defence. So, also, if he has been aspersed or misrepresented by the writer of the letters, or accused of improper conduct in a public manner, he may publish such parts of the letter or letters, and no more, as may be necessary to vindicate his character, and free him from unjust obloquy and reproach. But if he attempt to publish the letters, or any parts of them, against the wishes of the writer, and on occasions not justifiable, a court of equity will prevent the publication by an injunction, as a breach of that exclusive property in the letters which the writer retained." (2 Story R., pp. 110, 111.)

To the weight and accumulation of the authorities which we have now cited and examined, there stand alone, opposed, two decisions in our own courts-that of Vice-Chancellor M'COUN, in Wetmore agt. Scovill, (3 Edwards Ch. R., 515,) and of Chan

Woolsey agt. Judd and others.

cellor WALWORTH, in Hoyt agt. Mackenzie, (3 Barb. Ch. R. p. 314,) and upon these all special comments have been rendered unnecessary by the remarks we have already made. It will be sufficient to say, that in each case an injunction was denied, upon the sole ground that the letters of which the publication against the will of the writer, and for very dishonorable purposes, was sought to be restrained, possessed no value for publication, and none "of the attributes-[such is the language employed]—of literary compositions." We must, indeed, regret that the learned judges, by whom these decisions were pronounced, adopted so entirely the speculative views of ViceChancellor PLUMER, as to deem themselves justified in acting upon the distinction which he invented, and of which no trace is to be found in any case prior or subsequent; but as we believe, for the reasons that have so fully been given, that in so doing they departed from the established law, we must decline to follow their example.

We think that we are bound to declare the law as laid down by Lord HARDWICKE, and followed by Lord APSLY, and clearly expounded, and most distinctly affirmed, by Lord ELDON, and last, not least, by our own STORY. And it is with no ordinary. satisfaction that, in closing this discussion, we find ourselves in a condition to affirm that the rules of law relative to the publication of private letters, are in perfect harmony with those of social duty and sound morality, and, in the protection which they afford to individuals, consult and promote the highest interests of society.

We therefore decide that the plaintiff, upon the face of his complaint, and according to the established doctrines of equity. is entitled to the injunction for which he prayed, and on the terms in which it was originally granted.

We are also of opinion, that no justifiable cause has been shown by the defendants, Judd and McKay, for their intended publication of the plaintiff's letter, of which, by secret and unexplained means, the defendant, Judd, has obtained a copy.

The receiver of a letter may, indeed, publish it, when its publication is shown to be necessary for the vindication of his

Howard agt. Howard.

rights or conduct; but this license has never been extended to a person whose possession of a letter, or of the copy of a letter, as acquired without the consent of the writer or receiver, is wholly unlawful: could this objection be removed, it does not appear that these defendants seek to publish the letter for the purposes of vindicating themselves. Their sole object, as we understand the affidavits, is to fix what they deem an odious imputation upon the character or conduct of the plaintiff. Their object is not defence, but accusation. To such a design a court of equity can lend no aid or countenance.

The injunction must, therefore, be continued, as to the defendants Judd and McKay, until a final hearing and decision. It must, however, be dissolvod as to the other defendants, who have sworn that no copy of the letter is in their possession, and that they have no control over its publication.

The order appealed from must be modified accordingly. No costs are given to either party. BOSWORTH, J., dissented.

SUPREME COURT

E. B. HOWARD & O. B. HOWARD agt. F. B. HOWARD.

The provisions of the Revised Statutes, in relation to the production of an authority of an attorney to commence an action of ejectment, apply to suits, under the Code, to recover land.

An agent of a person absent from the state, having power to see to his property and business here, and also to pay for and take a deed of, and take and hold possession of, and carry on and work a piece of land, for his principal, has no power to give authority to an attorney to commence a suit to recover such land.

But an instrument, executed by one of two joint owners of the land, for and in the names of himself and his co-tenant, (they being the plaintiffs in the suit,) recognizing the authority of the attorney to commence the suit and requesting him to continue it-the plaintiff executing the instrument, having been verbally directed and authorized by his absent co-plaintiff to do whatever was necessary in regard to the prosecution of the suit, is a sufficient recognition.

Howard agt. Howard.

At Chambers, April, 1855.

R. S. HALE appeared upon an order for the production of the authority of the attorneys for the plaintiffs, to bring this suit in ejectment; and objected that the provisions of the Revised Statutes on the subject were repealed by the Code.

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He also read an affidavit of D. W. Howard, that he was the general agent" of the plaintiffs by parol appointment, "to see to their property and business" in this state. Also, that they instructed him to pay up a lease or contract for the land in question, and "take and deed, and take and hold possession" of it, and "manage and carry it on." It also appeared that D. H. W. had received a letter from the plaintiffs, requesting him to pay up for the land, and get "a deed, and go on and take possession of the land, and work it," till they came home. It appeared by the affidavits that the plaintiffs were in California.

On the day of the hearing of this matter, D. W. H. also gave the attorney for the plaintiffs a written authority in the names of the latter, as their agent, to prosecute the action, and also therein approved of the suit having been brought.

C. A. HAND, contra, insisted that the provisions of the Revised Statutes on this subject were still in force; and that no authority to commence the suit or sufficient recognition of such authority, had been shown.

HAND, Justice. I think the Code has not repealed the Revised Statutes, with regard to the production of the authority of the attorney to bring an action of ejectment. It contains nothing inconsistent with the precautions heretofore required; and, indeed, has no reference to the subject.

On the other point, a general agent to see to the property and business of his principal, and to take and hold possession, and manage and carry on a certain lot, is not authorized to employ an attorney to bring an ejectment.

The statute requires a written request to commence the suit, VOL. XI.

6

Howard agt. Howard.

either by the plaintiff or his agent; or a written recognition of the authority of the attorney to do so. (2 R. S. 306.) It does not, at least in express terms, require that the authority of the agent shall also be in writing; but if that is not requisite, he should have authority in fact. It has been decided that a solicitor must have a special authority to commence a suit. (Lord agt. Kellett, 2 My. & K. 1. And see Rogers agt. Cruger, 7 Johns. R. 557; Wilson agt. Wilson, 1 J. & W. 437; Wright agt. Castle, 3 Meriv. 12; 1 Dan. Pr. 352; 2 Chit. Gen. Pr. 19; 3 id. 116.) Unless required by statute, such authority need not be in writing, though that is the safer practice.

But the retainer in this case was not sufficient, nor sufficiently proved. The power to do an act, comprises a power to do all such subordinate acts as are usually incident to, or necessary to effectuate the principal act. (Pal. on Agency, by Dunl., 209.) But I cannot think an agency to see to property and business, with direction to take possession of a lot of land and work it, implies an authority to bring an action of ejectment. The plaintiffs' attorneys have not complied with the statute.

The agent of the plaintiff, however, swears that he has twice written for an authority, and for a recognition of the authority of the attorney to bring the suit, and that it was commenced in good faith, under the belief that he had an authority to do so; and he believes he will very soon receive a confirmation of his acts. The matter may be suspended a few days for that purpose.

At Essex Special Term, in March, 1855, the defendant having again moved the matter, the counsel for the plaintiffs produced an instrument, or writing, signed by one of the plaintiffs, for himself and his co-plaintiff, but dated after these proceedings were commenced, recognizing the authority of the attorneys to commence the suit, and requesting them to continue it. The same plaintiff also made an affidavit, wherein he stated that his co-plaintiff is still in California; that the plaintiffs are joint owners of the land in controversy; that both went to Cali