dissenting from the opinion of the majority of THE COURT, DELIVERED THE FOLLOWING OPINION:
This was an action brought by Breckinridge in the court below to obtain the possession of letters which he avers, that “during Ms married life with his said wife he was in the habit of writing to her letters, as also about two years previous to their marriage ; the letters so written by him to his wife amounted to several hundred in number, which letters were preserved by Ms wife.”
He also avers “ that his wife, before and during their marriage, had a large correspondence with an extensive circle of friends, whose letters she also preserved.” Also, that she had the expenditure, at her discretion, of about two thousand dollars annually, and that “ she kept and preserved the accounts and notes paid by her, and the written evidences of the expenditure of that amount,” which were “ numerous and of pecuniary value to plaintiff.”
*495He avers that he believes “ that those papers were removed by defendant, Susan P. Grigsby, to the residence of herself and husband, where they still are.” And that he is advised “that said papers, at the time of removal, being in the actual custody of his wife, were legally in his possession and legally his property. If he is not, as husband, the owner of them, still, as survivor of his wife and as administrator of her estate, he is entitled to them. That, as the writer of those letters addressed to his wife, he is interested in their contents, and is entitled to be guarded against any improper use or exposure of those confidential communications.”
He prays “ that the defendants may be required to surrender to him all letters written by him to his late wife, Virginia, both before and after their' marriage, and all other letters received by her during their marriage; also, all other papers, writings, and documents in the custody of his wife, and taken possession of by defendants.”
I have made these quotations to show that Breckinridge set up claim to these letters and papers in the character of author, surviving husband, and administrator of his deceased wife, and prayed specifically for a return to him of all, not in the character of husband or administrator, but in any and all of his rights; and he then prays “ that said defendants, in the meantime, be enjoined from destroying, delivering to others, or publishing-in any way, said letters and papers or any of them.”
To say, then, that he “ claims that he is entitled to those letters either as administrator or surviving husband, and nowhere, as mere author, does he claim the possession of the letters written by himselff is a clear misunderstanding of his assertion of right and title. If Mrs. Grigsby obtained them wrongfully, either by or without the consent of Mrs. Breckinridge, then her possession was an “ improper *496use’1' of, and “exposure” of them, which the court should remedy.
The pleadings of the parties constitute the whole case; no witness was examined for either party. There is a question as to whether the defendant’s answers are to be treated as a deposition, and therefore evidence, which will be examined.
September 9,1859, and before answer, the plaintiff filed an amended petition, in which he sets out the letters and papers he is seeking to obtain :
“ 1st. Letters written by plaintiff to his late wife, Virginia Breckinridge.
“ 2d. Letters written by many and various persons to his late wife, both before and since her marriage with the plaintiff.
“ 3d. And accounts and notes and memoranda of moneys paid out and expended by her.”
He also alleges that said papers and letters have been removed, and “ calls on the defendants to answer and disclose whether they received and removed any, and what letters, written by plaintiff to his late wife,” and also as to the others; and some other specific inquiries are put to call their attention directly to the facts, and alleges that he cannot, except by the discovery and statements on oath of the defendants, ascertain the number and dates of the letters and by whom written,” &c.
To these petitions the defendants subsequently responded, and profess to give a list, but which is not in the record, and say “ that they have no other papers which can throw any light whatever on the course of administration.” They admit that she had a numerous correspondence, and had received many letters which had been preserved, .and alleged that “some time prior to Mrs. Breckinridge’s death, and having full authority to do so, *497she placed in the hands and custody of defendant, Susan P. Grigsby, a number of letters received by her — Mrs. Breckinridge — at various times in her life, and reaching over a period of many years, some of which were received from the plaintiff both before and during their marriage,” and some from others, including her first husband, Alfred Shelby.
To this answer four exceptions were taken; also, another amended petition filed, in which many of the letters written by the plaintiff to his wife, before and subsequent to their marriage, were specified by the date of month and year written; and he calls on them to answer, “on oath,” whether they had received and then had such letters, what they did with the letters, and who now has them, and that they “ state freely all about said letters, and all other letters written by the plaintiff and others to his late wife, Virginia Breckinridge, received by them.”
To this they responded, that “the defendants answer plaintiff’s petition as amended, and say that Virginia Breckinridge, late wife of plaintiff, was formerly the wife of Alfred Shelby, deceased, and that the defendant, Susan P., was the daughter of said Virginia and Alfred Shelby.” Alleged that she had quite an extensive correspondence with her friends. Many of the letters were received whilst she was single, and many during both of her marriages; that, “ shortly before the death of Mrs. Virginia Breckinridge, she collected quite a number of these letters, part of which were written to her by plaintiff, both before her marriage to him and also afterwards; deposited the same in a box, and gave them to defendant, Susan, all of which were of a private and personal character, and none of which, as the defendants believe and charge, are in anywise valuable or necessary to the proper administration of the estate of said Virginia Breckinridge.” They *498further say they are “ unable to state whether such letters of the dates designated are in the box containing the letters given to the defendant, Susan, by her mother and that, “ in the gift aforesaid, the said Virginia only exercised the rightful power which she had over her own correspondence, and such as mai’ried women, in her state and condition of life, could rightfully do.”
To this answer, Susan P. Grigsby alone made the following affidavit: “The defendant, Susan P. Grigsby, says she believes the statements of this answer are true.’’'’
To this, as well as the other answer, some four exceptions were filed, and, without any other proof, the cause was submitted for trial, and the court adjudged a return to the plaintiff of all letters received by his wife from himself, whether before or after marriage, and for all letters received from others after their marriage.
There were no interrogatories affixed to any of the plaintiff’s pleadings for the defendants to answer, but all were contained in the body of the pleadings, and treated by both parties as part of the pleadings; and to show this the more certainly, the prominent parts of each pleading of the parties have been stated.
By subdivision 3, section 118, Civil Code,“a statement in ordinary and concise language, without repetition of the facts constituting the plaintiff’s cause of action,” must be set out in the petition.
- By section 153, “ every material allegation of the petition not specifically controverted by the answer, and every material allegation of new matter in the answer constituting a counter-claim or set-off, not specifically controverted by the reply, must, for the purposes of the action, be taken as true. But the allegation of new matter in the answer not relating to a counter-claim or set-off, or of new matter in a reply, is to be deemed as controverted by the *499«adverse party, <as upen a direct denial or avoidance, as the case may rcqwe.”
By subdivision 2, section 125, the answer must contain a denial of each allegation of the petition controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief”
Now tested as a pleading, neither of the answers were sufficient to controvert the specific allegations of the petition that the plaintiff had written his wife letters on given days of the month and year, and numerous other letters which dates he could not give, and that his wife had preserved these; for the defendants neither admit they have such letters nor deny having them; nor do they say they have no sufficient information upon which to form a belief that they did not have them, but content themselves with making the general and wholly insufficient statement, that “ the defendants are unable to state now whether such letters, of the dates designated, are in the box containing the letters given to defendant Susan by her mother.” What did it matter whether the letters were in the box or elsewhere, if they were in the defendant’s possession ? whether in or out of the box was wholly immaterial; and upon this state of pleadings the defendants should have been ruled to make their answer more specific.
' Section 167 provides, that “ in actions by equitable proceedings, either party may annex to his petition, answer, or reply, written interrogatories to any one or more of the adverse parties, concerning any material matter in issue in the action, the answer to which, on oath, may be read by either party as a deposition between the party interrogating and the party answering.”
By section 168, “ the party answering shall not be confined to responding merely to the interrogatories, but may state any new matter concerning the same cause of action, which shall likewise be read as a deposition.”
*500By section 672, “ in actions by equitable proceedings, a party answering interrogatories may, before the trial, file his written statement, under oath, concerning such new matter, which shall be read as'a deposition.”
By section 174, “ the party, in answering such interrogatories, shall distinguish clearly between what is stated from his personal knowledge and what is stated from information or belief merely. An unqualified statement of a fact shall be considered as made of his personal knowledge.”
By section 175, “ the answers to the interrogatories shall be verified by the affidavit of the party answering, to the effect that the statements in them made of his own personal knowledge are true, and those made from the information of others he believes to be true.’’’’
There are several substantial objections to reading the answer as Mrs. Grigsby’s deposition.
First. No interrogatories were annexed to the petition, and she was not required to answer in the nature of a deposition by the plaintiff, but merely required to answer specific allegations and inquiries as a pleading; and, as decided by this court in Bennett vs. Garrett, &c. (18 B. Mon., 71), she was under no obligation to answer them as a pleading. Therefore, if she voluntarily did so do, she could not, if she desired, thereby turn her pleading into a deposition, to be read at her own option.
Secondly. But she did not put her answer in as a response to interrogatories, but as a pleading. Her affidavit to it shows she treated it as a pleading and not as a deposition; for it is sworn to as a pleading, and not one of the requisites to make it a response to interrogatories was observed.
Thirdly. But had she responded as to interrogatories, yet it could only be read on the part of defendants at their own option. If the plaintiff had declined to read *501it as a deposition, then the defendants could have had it read as a deposition ; but the court could not, of its own mere motion, read it as evidence, much Jess can this court so read it for the first time, when nothing in the record shows that either party or the court below so read it. But all the record goes to negative this. I do not therefore regard these answers as a sound, pertinent, legal pleading, much less specific responses to annexed and direct interrogatories. There must be something in the record or actings of the parties which shows an intention to use it as a deposition, else the court cannot so use it.
If this be correct, Mrs. Grigsby has not the shadow of any evidence establishing that Mrs. Breckinridge ever gave her these letters; and, whilst she confesses to their possession, and thereby wmives any issue as to that, yet, as she asserts a gift to her, she must prove it, as it stands denied by the provisions of section 153.
But whether Mrs. Grigsby’s answer be or not regarded as a deposition, and whether she is to be regarded or not as having obtained by gift from her mother the letters written by the plaintiff to his wife, she has no legal right to retain them against his claim.
There is nothing acrimonious in this record; neither party has alleged any improper conduct against the other. As to the family and connubial relations, there is nothing in the record inconsistent with the most confidential, kind, and affectionate personal relations between Breckinridge and his late wife. Personally, I know nothing otherwise. As a judge, I can legally know nothing not appearing in the record. It is then a simple, naked, legal question, whether a wife can, by. gift to an alien to her husband’s family, part with his social confidential letters to her, and thus put them beyond his reach, sub*502ject to the gaze of the idle and the curious, and liable to the animadversions of the illiberal and the unfriendly equally with those well-disposed toward him.
This is the first case, so far as is known, wherein the direct question as to the right of custody of the letters written by the husband to his wife, or any other writer of letters, has been brought for adjudication after the death of the wife or other receiver. None of the cases referred to by the majority of the court, or referred to by the counsel on either side, involved the direct and immediate question of who was entitled to the possession of social friendly letters after the death of the receiver; and we must settle the law upon its true philosophic analogies, and hot upon rhetorical figures and platitudes. And though it be conceded that a married woman’s ideas, emotions, and affections are her own, and that her husband should neither be a tyrant nor a spy over her, who is neither his slave nor his misstress, but his free and equal companion; still,-when she has ceased to live; when no longer capable of emotions and affections; no longer his free and equal companion, but a lifeless, listless, lump of clay; when the intelligent, life-inspiring spirit has fled from its earthly habitation, who has, or can have, as good right to his own compositions, his own confidential, social, and affectionate letters- to his wife, before or after marriage, as the husband ? And what principle of social rights or social delicacy should ingraft upon our jurisprudence the legal right in the wife to put those letters beyond his reach and control, when not necessary to establish or perserve any property right, nor vindicate character or repel unjust accusations ? Neither party in this suit avers any such- foundation of claim. As a starting point, let us examine what the character of property in letters or other manuscripts is, held by the *503author and the receiver. As early as Lord Hardwicke’s time, that able and learned English jurist, in Pope vs. Curl (2 Atkins, 342), said: “ I am of opinion that it is only a special property in the receiver. Possibly the property in the paper may belong to him; but this does not give license to any person whatever to publish theni (the letters) to the world; for, at most, the receiver has onlf a joint property with the writerAnd this is quoted by Judge Story with approbation; and the American lavtflaid down by him in almost the identical words of Lord Hardwicke, in section 944, 2d volume Story’s Equity Jurisprudence ; and in section 945 Story says: “In a comparatively recent case, Lord Eldon has explained the doctrine of courts of equity on this subject to be founded, not on any notion that the publication of letters would be painful to the feelings of the writer, but upon a civil right of property, which the court is bound to respect. That the property is qualified in some respects ; that, by sending a letter, the writer has given, for the purpose of reading it, and in some cases of keeping it, a property to the person to tohom the letter is addressed ; yet that the gift is so restrained, that, beyond the purposes for which the letter is sent, the property is in the sender. Under such circumstances, it is immaterial whether the intended publication is for the purposes of profit or not. If for profit, the party is then selling. If not for profit, he is then giving .Üisíí, a portion of which belongs to the writer.”
There is nothing clearer than that the English courts; and Story, as a high American authority, treat the general property as being in the writer, and the special property in the receiver.
What is the extent of the gift made by the writer to the' receiver in sending the letter? Let Story answer: “By sending a letter the writer has given, for the purpose of *504reading it, and in some cases of keeping it, a property to the receiver;.yet the gift is so restrained, that, beyond the purposes for which the letter is sent, the property is in the sender.”
And I hazard the opinion that not a single case, now recognized as authority, either in England or America, has ever gone to the extent of recognizing the right in the receiver, during his life, of bestowing the property in the letter on another; more especially have they not when the receiver’s right to read and retain was about to expire by the termination of his or her . life, to bestow the property in fee sim'ple upon another.
That the entire property is in the author until sent to the receiver is agreed by all courts and writers upon jurisprudence, without contrariety. By sending it, he parts with a special, limited property, and bestows this upon the receiver for a few limited purposes. Who, then, logically, must have the general property — the one who has a limited right for particular purposes, or the one who has the right to publish it, and an unlimited right to use it for any and all purposes ?
To say that the receiver has the general, and the writer the special property, would seem equally to lack the authority of logic and of law.
But suppose the rights of the respective parties be put upon joint ownership, the logical and legal result would be, that the survivor of joint-owners of personal property has the right to its possession and control; and this is the universal rule, unless, because of insolvency or fraud, the chancellor should interpose to keep the surviving joint-owner from taking possession.
But the property of the receiver of letters, unless these be necessary to vindicate rights of property or character, or repel unjust aspersions, in its very nature, is essentially a life estate, the only purposes being for the indi*505vidual to whom sent, and peculiarly personal to the receiver; hence, when the receiver dies, the whole special property in him is extinguished, and then, not only the general, but the entire property, is in the author.
This logical and legal result was met, and, at one time, overruled in England by Vice-Chancellor Sir Thos. Plumer (Lord and Lady Percival vs. Phipps et al., 2 Ves. & Beam., 19), after the law had been settled for three quarters of a century by .Lord Hardwicke, in which, though, not essential to the case, he denied any property in the writer of private and social letters not intended for publication, and dissolved an injunction which had been granted by Lord Eldon.
But in the subsequent case of Gee vs. Pritchard, 2 Swanston, 402, Lord Eldon, with a clear and overwhelming logic, firm hand, but gentle and respectful language, swept away the unsubstantial and illogical theories of Vice-Chancellor Plumer; since which, the case of Percivul vs. Phipps has ceased to be regarded as authority in England.
If these cases stood on simply the authorities of the judges rendering them, what well-informed court could for a moment consider Plumer as against Eldon? As to Plumer, it will be sufficient to quote from the private diary of Sir Samuel Romily:'
“A worse appointment than that of Plumer to be Vice-Chancellor could hardly have been made. He knows nothing of the law of real property, nothing of the law of bankruptcy, and nothing of the doctrines peculiar to courts of equity.” (Memoirs of the Life of Sir Samuel Romily, vol. 2, p. 310.)
An enlightened English judiciary has never since considered Percival vs. Phipps as even slight authority. This decision, however, was followed by Vice-Chancellor Mc*506Coun, of New York, in Wetmore vs. Scovill, 3 Edwds. Chy. R., 515, and by Chancellor Walworth, of New York, in Hoyt vs. McKenzie, 3 Barb. Chy. Rep., 314.
But both of these have been subsequently overruled by the supreme court of New York, in the case of Woolsey vs. Judd, 4 Duer, 382, decided in 1855 ; since which they have ceased to be regarded as authority in New York, and should cease to be so regarded in Kentucky.
In this latter case the able and exhaustive opinion of the court by Judge Duer has most thoroughly annihilated the reasoning of Plumer, McCoun, and Walworth, and triumphantly exhibited that the decisions rendered by them were unsustained by authority, contrary to the analogies of the law, and disregardful of the rules of logic.
As the cases of Percival vs. Phipps, Wetmore vs. Scovill, and Hoyt vs. McKenzie, have ceased to be authority in the Kingdom and State where rendered, I shall neither respond to their reasoning, quote them, nor regard them as authority in this State for any purpose. For in the legal world these may be regarded as the ephemeral, vanishing meteor, which shines for an instant, explodes, and is forever dark; whilst those great jurists, who have settled the law upon philosophical principles of justice, like the star-gemmed heavens, continue to radiate their light upon the pathway of time.
And as these are the only British or American authorities which deny the right of the author to enjoin the publication of a private letter on the ground of property, I cannot agree with the majority of the court in saying, “ A majority of American cases deny the right of the author to enjoin the publication of a private letter on the ground of property.'''’
But so far from this being the case, there is not a single A merican authority which now denies this right, which *507has been brought to view. Even Parker, the Massachusetts Judge and Professor, recognizes this whilst he says: “The right of the receiver, then, is to the whole letter. He may read it himself and to others and recite it at meetings; he may do everything but multiply copies; and perhaps he may do this if he do not print them,” which is even more obscure and more at war with the analogies of the law than were the overruled English and New York cases, and which I suppose never entered the mind of any but a New England transcendentalist.
He evidently confounds publication with that oí printing, and makes them synonymous. From what jurisprudence he learned this I know not, nor can I comprehend such a principle. If reading letters at a public meeting and multiplying copies and placing them in the hands of others are not publication, then I confess my entire ignorance of both the legal and ordinary meaning of the term.
Bouvier (2d vol. Law Die., 400) says publication “is the act by which a thing is made public.” “ Publication has different meanings.” “When it refers to a libel, it is its communication to a second or third person, or a greater number.” Such is the legal meaning of the term. Webster says it is “the act of publishing or offering to public notice; notification to a people at large, either bywords, writing, or printing; proclamation; divulgation; promulgation.”
Professor Parker has therefore disregarded both the legal and philological meaning of the term. As said by the supreme court of New York in Woolsey vs. Judd, “ there is probably no doctrine which, as general, is more fully sustained, and, indeed, established by authority, than that the author of an unpublished manuscript has an exclusive right of property therein at common law — a right which entitles him to determine for him*508self whether the manuscript shall be published at all. * * * The language of the text-writers is uniform and positive; the decisions numerous and express;” and refers to as—
British:—Forester vs. Waller, 2 Brown, 138; and by Lord Mansfield, 4 Burr, 2, 320; Webb vs. Rose, same; Donaldson vs. Becket, same, 2, 508; Duke of Queensberry vs. Shebcare, 2 Eden's Chy. R., 329; Southey vs. Sherwood, 2 Mer., 334.
American:—Wheaton vs. Peters, 8 Peters' S. G. R., 591; Eden on Injunctions, 595, 296; Story's Eq. Jur., section 943; Curtis on Copyright, 84, 150, 159.
This being the settled law as to manuscript compositions unpublished, which, in their nature, might be presumed as written for publication, the next question came up, how far these rules applied to mere private letters on business, or on family concerns, or on matters of personal friendship.
Story {Equity Juris., sec. 946) says: “In a moral view, the publicaiion of such letters, unless in cases where it is necessaiy to the pic-per vindication of the rights or conduct of the party against unjust claims or injurious imputations, is, peihaps, one of the most odious breaches of private confidence, of social duty, and of honorable feelings, which can well be imagined. It strikes at the root of all free and mutual interchange of advice, opinions, and sentiments, between relatives and friends and correspondents, which is so essential to the well-being of society, and to the spirit of a liberal courtesy and refinement. It may involve w'hole families in great distress, from the public display of facts and circumstances which were reposed in the bosoms of others under the deepest and most affecting confidence that they should forever remain inviolable secrets. It may do more, and compel every one, in self-defense, to write, even to his dearest *509friends, with the cold and formal severity with which he would write to his wariest opponents or his most implacable enemies.”
And in section 947 he says: “ It would be a sad reproach to American jurisprudence if courts of equity could not interpose in such cases,'and if the rights of property of the writers should be deemed to exist only when letters were literary compositions. If the mere sending of letters to third persons' is not to be deemed, in cases of literary composition, a total abandonment of the right of property therein by the sender, a fortiori, the act of sending them cannot be presumed to be an abandonment thereof in cases where the very nature of the letters imports, as matters of business, or friendship, or advice, or family or personal confidence, the implied or necessary intention and duty of privacy and secrecy.'”
And in section 948 he says: “ Fortunately for public as well as private peace and morals, the learned doubts on this subject have been overruled; and it is now held that'there is no distinction between private letters of one nature and private letters of another.”
In Falson vs. Marsh (2 Story’s R., 100), Judge Story adjudicated the right of property as existing in the writer to the same extent in mere friendly, family, and social letters, not designed for publication, or of literary compositions in manuscript, because every letter, no matter how defective in composition or trivial in subject, is a literary composition in the legal sense of the term.
In Thompson vs. Stanhope (Ambler, 737), the executors of Lord Chesterfield filed a bill to enjoin the publication by the widow of his son of those celebrated letters which, for a series of years, he had written to her husband; also, the publication of certain characters which he had drawn in writing of some of his contemporaries. The defendant put in for defense that Lord Chesterfield had himself *510given to her both the letters and characters; but Lord Asply, afterward Lord Bathurst, sustained the injunction against this publication. Here was a case in which the writer, after the death of the receiver, obtained the possession of the letters, and gave them to the deceased receiv-_ er’s surviving widow; and even then the court exerted its power to prevent publication. The fact that the defense was predicated on the gift by the sender after the death of the receiver, and the further fact that the court made no comments in derogation of this title, strongly implies that both the English lawyers and courts in such case recognizes the entire property, with the right of disposition, in the surviving writer.
In Gee vs. Prichard (2 Swanston, 402), the plaintiff was a widow lady, and the defendant the natural son of her late husband; they had lived together for many years on terms of great intimacy and kindness; but differences had finally arisen between them relative to her husband’s estate, when, at her request, he returned to her the original letters, but retained copies, and claimed the right to publish these in vindication of his own conduct.
Two questions were raised, elaborately argued, and deliberately considered — 1st. Whether she had such a property in the letters as entitled her to forbid their publication. 2d. Whether her conduct toward the defendant authorized him to publish the letters; and both were found in plaintiff’s favor. In all the cases referred to, the sole object of the bill was to suppress the publication; but it does not thence follow, had the object been to obtain the original manuscript, especially after the receiver’s death, that this would have been disallowed; but the contrary is plainly to be inferred from the language in Woolsy vs. Judd (4 Duer, 387), in which it is said :
“ Not only is the right of property in the author not subject to the limitation which some have supposed to *511exist, but it is absolute as well as unlimited. When he applies for an injunction, it is not necessary that he. should aver that he desires to take from the defendants, or secure to himself, the profits of publication. As owner, he has an absolute right to suppress as well as to publish; and he is as fully entitled to the protection and aid of the court, when suppression is his sole and avowed object, as when he intends to publish.”
As the author has both the absolute right of publication and suppression, and because only the latter right has been asserted in the referred to cases, these by no means determine his right of publication; and the possession of the original manuscript being essential to this right, it is almost certain that, as against the receiver, on a bill filed for the purpose, the court would compel a surrender of the original; but as against the representatives, the bailee or donee of the receiver, after his death, I apprehend the author is entitled to the original manuscript of such letters, even without averring a desire to publish, because then the sole and exclusive property is in him. The most that can be said of the gift to a receiver is, that the sender has given him the right to read and keep the letter during his life, but not to expose it to the gaze, nor give it to others, much less to pass it by absolute fee, on the termination of the life estate, to another.
Therefore, I regard the analogy between the receiver’s rights to such letters and the wife’s separate rights to her personal jewels, as about the same as between her dower right and the inheritance in fee of real estate.
And I regard this doctrine as quite as disastrous to wives as husbands; for if the wife has the right, “ regardless of Ms will,” to dispose of his letters to her, so must the husband have the right, regardless of the wife’s wall, to dispose of her letters to him, and thus the confidence, *512delicacy, privacy, and, I may add, sacredness of the connubial relations, may be at the absolute disposal of either party.
If Mrs. Breckinridge could pass the absolute right of possession to Mrs. Grigsby of those letters written to her by her surviving husband, why may not Mrs. Grigsby pass it to some one else, and her vendee or bailee to another, and so on ad infinitum.; and if this is to be the recognized law of the land, to what purpose need the right of injunction against publication be further cared for; for what will be its practical purposes and uses ?
Then, in the name of every husband and wife of'the Commonwealth, and as I regard the sacred, secret privacy of the family relation, and its security against the prying eye of the curious, I dissent from the recognition of an}T legal rule which will expose these sacred relations and private affairs to the gaze of the world or outside community through the agency of either husband or wife.
The liberty claimed for the wife in this instance strikes from wives in general that sacred shield which the analogies oí the law throw around their freedom, and which will prove their surest protection, independence, and liberty.
This delivery by the receiver to any one else is a publication in the legal sense, and a violation of the writer’s legal rights; and to recognize the vendee’s legal right to hold the letters as against the author, and yet to grant an injunction, would seem to be unphilosophic; but especially is this the case when there is no averment in the petition that Grigsby or wife intends to publish them, and when they, in their answer, expressly disavow such an intention.
*513The petition goes for a surrender of the original letters and a temporary injunction against publication pending the litigation; and as no intent of publishing is averred or proven, no cause of action is made out unless the plaintiff has a right to the custody of at least the letters written by him; and the judgment should be reversed, with a direction to dismiss the petition without prejudice.
But I think the judgment should be affirmed, so far as it requires the surrender of the letters written by plaintiff, but reversed as to the letters written by others; for, as to these, I think, after Mrs. Breckinridge’s death, her entire property ceased in them, and they belonged to their authors, and with which the plaintiff, neither in his own right nor as her representative, had any right of custody; and as to these, I understand him to abandon all claim.
There may be much plausibility in saying, that, from the very nature of this property, the receiver’s rights .are essentially separate and exclusive of that of her husband, so far as letters by others may be written to her; but how she can have a separate exclusive property in those written to her by the husband is beyond my comprehension, especially if he, as author, is to be deemed as having any property whatever in them, and thus be a joint owner with her. As the wife gets no legal, separate, exclusive estate by the mere act of the husband’s sending letters to her, her possession of such must be regarded as his legal possession; and when the wife attempts by her own act, without his consent, to deprive him of this legal custody and right of property in the letters, it would seem to present a strong case for the interposition of a court of justice to restore to him his legal rights of possession and property.