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Eyre and wife agt Higbee and wife.

come liable by some arrangement subsequent to the discount, could never be discovered by anything contained in the statement. The judgment, therefore, must be set aside, and the proceeds of the sale applied upon the other executions. I think, too, the plaintiffs in the other judgments are entitled to the costs of this motion.

SUPREME COURT.

WILSON EYRE and LOUISA L. L., his wife, agt. EDWARD V. HIGBEE and FANNY L., his wife.

The receiver of a letter has a property in it. And the writer of a letter has a property in it, but such only as will enable him to restrain the publication of the letter.

Therefore, if consent to such publication be given, or no objection to such publication is interposed by the writer, a stranger cannot say that the receiver has no property in the letter, and may not do with it as he pleases.

New-York Special Term, January, 1858.

THE Complaint alleges that Tobias Lear, in his life, was the owner and possessor of a large number of letters, addressed to him by General Washington, from 1790 to 1799: that said Tobias Lear continued to possess the same until his death, in 1816: that they remained in his family until the month of September, 1856, when they were delivered to Mrs. Higbee for a special purpose, by the widow of Tobias Lear.

The plaintiff Louisa Lincoln Lear Eyre, is the granddaughter of Tobias Lear, and she claims these letters, which have been collected and bound into a volume, as her property.

The complaint avers that neither of the defendants have ever been authorized by the widow of Tobias Lear to take possession of said letters. The complaint also avers that the plaintiff Louisa Lincoln Lear Eyre, is now the sole owner of the said volume of letters, and has demanded the same of the

Eyre and wife agt. Higbee and wife.

defendants, who have refused to deliver it up to her. To this complaint the defendants demur, upon these grounds:

1. Because the representatives of General Washington are not made parties.

2. That the lapse of time since the death of Tobias Lear forms an equitable and legal bar to the claims of the plaintiffs.

3. Because the complaint does not state facts sufficient to constitute a cause of action.

E. W. STOUGHTON, for defendants.

II. A. CRAM, for plaintiffs.

DAVIES, Justice. I shall confine myself, in the disposition of this demurrer, to the question so ably discussed on the argument, whether the recipient of a letter has any property therein.

If Tobias Lear, as the person to whom these letters were addressed, had any property in them, then the averment of the complaint, and which is admitted by the demurrer, that the plaintiff Mrs. Eyre is now the sole owner of the letters, would make that property hers.

If Lear had any property in the letters, it follows, from the admissions in the pleadings, that that property is now vested in his granddaughter.

I think the rule laid down by Lord HARDWICKE, in the case of Pope agt. Curt (2 Atk. 342), has always been regarded as the correct one. He says: "I am of opinion that it is only a special property in the name. Possibly the property in the paper may belong to him, but this does not give a license to any person whatever to publish them (the letters) to the world, for, at most, the receiver has only a joint property with the writer."

These views are re-affirmed and adopted in the very able and learned opinion of Mr. Justice DUER, of the superior court, in the case of Woolsey agt. Judd (11 How. Pr. R. 49).

I have not been able to find, in all the cases which I have

Eyre and wife agt. Higbee and wife.

examined, anything in conflict with them. Lord ELDON says, in Gee agt. Pritchard (2 Swans. 442), "I think the decisions represent the property as qualified in some respects; that by sending the letter, the writer had given, for the purpose of reading, and in some cases of keeping it, a property to the person to whom the letter was addressed, yet that the gift was so restrained, that although the purposes for which the letter was sent, the property was in the sender.

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I doubt whether the court has proceeded so far as to decree the restoration of letters, for the principle on which it interferes, recognizing a joint property in the writer and the person to whom they are addressed."

I think the principle deducible from all the cases is, that the writer has such a property, and such only as will enable him to restrain the publication of the letters, and that if consent to such publication be given, or no objection to such publication is interposed by the writer, a stranger cannot say that the receiver has not property in the letters, and may not do with them as he pleases.

In the case referred to supra, Justice DUER observed that "the receiver of a letter may, indeed, publish it, where its publication is shown to be necessary for the vindication of his rights or conduct, but this license has never been extended to a person whose possession of a letter or a copy of a letter, as acquired without the consent of the writer or receiver, is wholly unlawful."

It follows, I think, that the receiver of a letter has a property in it, and though this case does not call for any adjudi cation as to the rights of the writer (the defendants making no claim to them under or through him), these rights have been held to warrant the writer, or his representatives, to restrain the publication of them without his consent.

The demurrer must be overruled, with leave to the defendants to answer on payment of costs.

Crandall agt. Bryan.

SUPREME COURT.

CRANDALL agt. BRYAN.

On an application for an order of arrest, the affidavits to be presented to the judge must make out a prima facie case for the arrest. That is, the judge must be satisfied judicially, upon the force and weight of the evidence produced by the affidavits, that a cause of action exists, and that the case is a proper one for an arrest within the provisions of the Code.

An affidavit for an arrest upon information and belief generally, is clearly insufficient. But some of the material facts may be stated upon information and belief, where the affidavits state the nature, quality and means of the information, so that the judge can be able to see that this belief is well founded, as was held in Whitbeck agt. Roth (5 How. P. R. 143.)

Deceit, or fraudulent representations accompanied by damage, constitute a good ground of action in respect to a sale of real, as well as personal property. The Code did not, nor could not abolish the common law, or common law rights. And it is to be regretted that the codifiers should have thought it necessary to abolish the names of remedies which were so well defined and understood as to have become almost inseparable from the right of action, and attempted to introduce an entire new nomenclature into the law. This change frequently leads to doubts and perplexities in cases arising under the provisions of the Code itself. For instance, formerly, in respect to many rights of action, there was an election whether the form of the remedy should be assumpsit or case; and where in cases of fraud the remedy would have or might have been assumpsit, an arrest now can clearly be made, for that is an action where "the defendant has been guilty of a fraud in contracting the debt, or incurring the obligation for which the action is brought," &c. (§ 179, sub. 4). But it is not so clear whether the defendant can now be arrested under this subdivision, when the form of the remedy in respect to the fraud would have been under the old system an action on the case; as for instance, fraud or deceit in the sale of land.

Whether a defendant can now be arrested in an action for fraud or deceit in the

sale of land, must depend upon the construction to be given to the word "obligation" in sub. 4, § 179 of the Code, where it says "or incurring the obligation for which the action is brought," &c.

Held, that this clause "incurring the obligation for which the action is brought," was intended to cover cases of fraud in fact, where the remedy was not on the contract in form; where the fraud was committed in some matter of contract under or by virtue of which the plaintiff suing had been deprived of his property. And the word "obligation" therein is used in the general sense to include all the cases beyond those which would be embraced in the first clause,

Crandall agt. Bryan.

where the fraud is committed "in contracting the debt for which the action is brought;" where the action would not rest upon the contract, but upon the legal duty. It must be construed, in this connection, as equivalent to legal liability or legal duty.

Seventh District, at Chambers, June, 1857.

MOTION to discharge defendant from arrest.

This action was brought by Jesse Crandall against James Bryan. The complaint stated that the plaintiff and defendant agreed to exchange lands, the plaintiff contracting to give a farm in Union, Monroe county, for lands in Barry county, Michigan, which defendant claimed to own; that deeds were duly exchanged, the defendant representing that he had a good title to the Michigan lands, and that they were free from all incumbrances, although there was a squatter on them who had and claimed no title, and would give up possession at once on being paid a small sum for his crops; that plaintiff had ascertained from official certificates and other information that defendant did not own, and had never owned the lands in Michigan, but they were actually occupied by one Sacket, who claimed to own them, and who had a good title upon record. The complaint further stated that the defendant had conveyed the lands in Union, and that the same had by several mesne conveyances, duly recorded, come to the possession of a bona fide purchaser, and were, therefore, lost to or could not be recovered by the plaintiff. He claimed to recover in damages the estimated value of the lands in Union or Michigan, with other damages.

Annexed to the complaint were several affidavits tending to show fraud on the part of the defendant, and also an affidavit by one Hall, who was the agent of plaintiff in making the trade, and who swore positively to the representations of the defendant in respect to the Michigan lands, his title, and their situation, as stated in the complaint. He also swore that he had been to Michigan to take possession of the land for the plaintiff, and found the same in the actual occupation of the person named in the complaint, who claimed title thereto absolutely, and that he then and there ascertained from an exVOL. XV.

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