The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1884-07-30

lor Walworth held that he would not enioin the
publication OF private letters unless they had a
literary value. (Hoyt vs.. Mackenzie, Barb. Chan.
500 says: at was also held that II the contents
of the letter were such that il could not be sup
posed that the writer would consent to its publ
cation, the conclusion must be that the letter
has no value as literary production. But this a
remarkable NON se9HifaT, especially as in the very
case in which the decision was made the defendant
had published the plaintiff 8 letters surrepti-
tously obtained. expecting 10 derive profit there
from" Mr.. Justice Story has strongly commended
for the jurisdiction Of equity to restrain the publ
cation of private letters the ground Of violation
of cofdence and injury to the feelings, and this
the most reasonable doctrine, and it receives
counteuance from cases cited in the margin" Of
these cases only one is accessible to Eyre vs.
HiRbie, IS Barb. 502. This case decides that pri-
private letters received by person in his lifetime
are not assets in the hands of his administrator
and subject to sale to pay debts.
The receiver has only qualified property in
them. Atithe most he has only a joint property
with the writer. As laid down BY Lord Eldon in
Gee vs.. Pritchard, SSanston, 402: The property
is qualified in some respects; that by sending th e
letter the writer has given, for the purpose of read
ing it, and in some cases of keeping it, property
to the person TO whom it is addressed yet that gift
| is so restrained that beyond the purposes for
which the letter IL sent, the property is in the
sender. Under such circumstances it is imma
terial whether the intended publication is for the
purpose of profit or not. If profit, the party is
then selling, il not for profit he is then giving
This case is not accessible to me, but Judge
| Mullin in Eyre vs.. Higbee, in commenting upon
it, says: "The English Court of Ohancery has ex.
| tended its protection, by means of Injunction
over letters on matters of business or friendship
and for the that the writer has an interest
IN them, and it would not permit a breach of his
confidence in allowing the publication"
Under these authorities the receiver of the letter
in question, would not be authorized to make pub
icaton of 1t to any extent greater than authorized
| by the writer.
foriiori third parties as these defendants are,
| have no such authority.
Even Judge Story, though finding that Courts, of
Equity would not exercise the injunctive power of
the Court unless the letters were of literary value
says that these matters are cognizable in civil or
criminal action at law" Vide Supra, Sec. 9iSa.
In Brandreth vs.. Lane, s Paige, Oh. p. q, Chan
cellor Walworth refused to restrain the publication
| of libellous work, but left the plaintiff 10 his
| action at law.
In Woolsey vs. Judd, Duer $40, it is held that
a court of Equity cannot prevent the publication
of private letters merely on the ground that such
publication Is injurious to the interests of society.
1t must stand on the ground that the writer has an
| exclusive property remaining in him, and the
| right to an injunction does not depend upon the
question whether the letter possess value as liter
| airy competition.
Waits Digest, Title Injunction.
But Chancellor Kent, Commentaries 3S1: says,
"Ihe publication of private letters ought to be
restrained when it would be breach Of confidence
and trust. as letters of courtship, or rle Injurious
| In Hopkinson vs.. Lord, Burghley, = L. Il, AS
Lord Cairns says: "The question in all these
cases is, what was the purpose or object in the
mind of the person sending the letter. The writer
Is supposed to intend that the receiver the
letter for any lawful purpose, and it has been held
that publication is not such lawful purpose"
1t seems TO me that as the complaint AYERS, that
not only was an injury intended to plaintiff by de-
| PENDANTS, but that one was done to the feelings,
character and reputation of the plaintiff by the
wrongful and injurious publication of this letter,
| this injury is not one that is without redress
Upon principle and / think upon sufficient
authority-to wit: Mr.. Justice Story, Lord Cairns
and Judge Cooley-the plaintiff ought to have the
remedy for the wrong done him. Where there is a
| right there is a remedy. As Lord Holt has said,
ut Is vain thing to imagine right without a
remedy; for want of right and want of remedy are
reciprocal" Ashley vs.. White, Id Raymond, 93S.
Smiths Leading Cases, los. Here the plaintiffs
had been denied the right to vote for members Of
| Parliament. mo such case" says Cooley, "bad
ever been adiudged and there was precedent
| for the suit. But in the opinion of Lord Holt a
precedent was not important, the material question
| was, had they a right 10 voter When the facts
were found in their favor, the legal conclusion
must follow: Having right, the remedy was Of
| of course"
In the case before me, tue wrong has been done
the letter has been published; it cannot now be
restrained by injunction. 10 sustain this demur-
rer would be to hold that the defendants may con-
tinue to publish this letter from year to year. III
definitely, in all parts of the world, wherever the
| defendants may think il would damage the plant
if. 1t would be reproach TO justice to say that
| such conduct is remediless. The measure of dam.
ages is not raised by the demurrer. 1t is properly
| a matter of instruction to the jury.
override the demurrer.
A.. S. Hartwell and Z. Preston for plaintiff
| f. NJ Hatch and =. Neumann for defendant.
| Honolulu, July Goth, 1884.