be brought. This is so, because the conclusion of one suit would be but the beginning of another. A defendant who had secured a favorable result in the suit against him would be tempted to bring another suit for the purpose of showing that there had been malice and want of probable cause in the prosecution of the first suit which he had won. Litigation would thus become interminable. Every unsuccessful action would be apt to be followed by another alleging malice in the prosecution of the former action. There would thus be substantially a trial of every lawsuit twice instead of once, because, in order to show that the first suit was malicious and without probable cause, it would be necessary to go over again the material facts that had been developed by the proof in such suit. Again, if every successful defendant should be encouraged to bring an action against the defeated plaintiff for the malicious prosecution without probable cause of an ordinary civil suit, such defendant would be careless and extravagant in the matter of the cost of the defence made by him. It would be a matter of little importance to the successful defendant whether his contract with his attorney for the latter's professional services provided for extravagant or reasonable fees, if he could turn around at once and recover from the defeated plaintiff whatever he had expended. His expenses and trouble and loss of time and credit would assume larger proportions, and would be regarded as heavier burdens, if he knew that he was to be reimbursed for such outlay from the property of his adversary. In addition to this, there is no reason why a plaintiff may not bring an action against a defendant who has made a groundless and causeless defence, if the defendant may sue for damages which he has suffered for an unfounded prosecution.

For the reasons stated, we are of the opinion that the Court below committed no error in instructing the jury to find for the defendant below (the defendant in error here). Accordingly the judgment of the Appellate Court, affirming the judgment of the Circuit Court, is affirmed. Judgment affirmed.1

The defendant maliciously and without probable cause filed a petition for adjudging the plaintiff bankrupt and distributing his assets among his creditors. After a trial, the plaintiff was adjudged not bankrupt, and the petition was dismissed. Has the plaintiff an action? (1905, Wilkinson v. G. B. S. Co., 141 Fed. 218.)

The defendant maliciously and without probable cause filed a petition for adjudging the plaintiff insane and placing him under guardianship. On trial of the cause, the petition was dismissed. Has the plaintiff an action? (1877, Lockenour v. Sides, 57 Ind. 360.)

CHAPTERS ON THE JURAL NATURE AND ETHICAL BASIS OF THIS RIGHT: Henry T. Terry, "Some Leading Principles of Anglo-American Law," c. XIII, § 472, p. 471.

Thomas E. Holland, "Elements of Jurisprudence," 9th ed., c. XI, par. IV, p. 177.]

SUB-TITLE (III): LOSS OF PERSONAL PRIVACY

PRINCE

333. PRINCE ALBERT v. STRANGE

VICE-CHANCELLOR'S COURT OF ENGLAND. 1851

2 De G. & Sm. 652

THE original bill in the former of the above suits was exhibited by the Prince Albert, as plaintiff, against William Strange, a publisher in Paternoster Row, and the Attorney-General, as defendants.

The original bill stated that Her Majesty and the plaintiff had occasionally, for their amusement, made drawings and etchings, being principally subjects of private and domestic interest to themselves, and of which etchings they had made impressions for their own use, and not for publication. For greater privacy, such impressions had been, for part, made by means of a private press kept for that purpose, and the plates themselves had been ordinarily kept by Her Majesty under lock; and the impressions had been placed in some of the private apartments of Her Majesty at Windsor, and in such private apartments only. That the defendant, William Strange, or his confederates, had in some manner obtained some of such impressions, which had been surreptitiously taken from some of such plates, and had thereby been enabled to form, and had formed, a gallery or collection of such etchings, of which he intended to make public exhibition, without the permission of Her Majesty and the plaintiff, or either of them, and against their will; and that the defendant, William Strange, who was a printer and publisher, carrying on business at No. 21 Paternoster Row, London, had printed and published a work, of which the title-page or cover bore the following title: "A Descriptive Catalogue of the Royal Victoria and Albert Gallery of Etchings." . . . The bill stated that the work was published without the consent and against the will of the plaintiff and the Queen, and it contained other statements to the same effect as those of the affidavit of the plaintiff, mentioned below.

The prayer was that the defendant might be ordered to deliver up to the plaintiff all impressions and copies of the several etchings respectively made by the plaintiff, and that the defendant and his servants, agents, and workmen, might in the meantime be restrained by injunction from exhibiting the gallery or collection of etchings, or any such etchings; and from making or permitting to be made any engravings or copies of the same or any of them; and from in any manner publishing the same or any of them; and from parting with or disposing of the same or any of them; and from selling or in any manner publishing; and from printing the descriptive catalogue, or any such work being or purporting to be a catalogue of the etchings; and that all the copies of the catalogue in the possession or power of the defendant might be given up to be destroyed. . . .

After the order was made granting the injunction, the bill was amended making defendants thereto, in addition to Strange and the AttorneyGeneral, two other defendants, named Jasper Tomsett Judge and J. A. F. Judge, and stating (among other things) that some of the impressions of the etchings were obtained in the following manner, viz., that certain of the plates were given to Mr. Brown, a printer at Windsor, for the purpose of printing off certain impressions thereof for Her Majesty and plaintiff; and that Mr. Brown employed therein a person of the name of Middleton, who, without Mr. Brown's consent or knowledge, and in violation of the confidence reposed in him, took impressions thereof for himself, and that the defendant, Jasper Tomsett Judge, had bought or in some manner obtained the same from Middleton.

Dec. 13. Mr. Russell, Mr. Warren, and Mr. Sidney Smith, for the defendant Strange, in support of a motion to dissolve the injunction obtained upon the bill so far as it restrained the publication of the catalogue. The publication sought to be restrained contains nothing more than a description by name of a series of etchings executed by Her Majesty or the Prince, describing the subject of the etchings, with remarks and criticisms. The injunction was obtained on four affidavits, which do not make out any case of impropriety of conduct on the part of the defendant, Mr. Strange. It can scarcely be supposed that he had any evil intention when he took the course of, in the first place, bringing his intended publication under the eyes of the very parties whom he was charged with intending to offend. There may be a want of delicacy in the conduct of the defendant, and a want of comprehension of the feelings of persons in an elevated position, but there has been no infringement of any legal right. No one has a legal right to complain of the publication of a catalogue describing articles in his possession, letting the world know what they were. Another, who has seen the articles and acquired a knowledge of their nature, may embody in a publication the result of the exercise of his own faculties. It is not suggested that the property in the etchings has been interfered with. The defendant does not seek to publish even a likeness of them. An owner of a print is not the owner of a description which a stranger had made of it; nor can he hinder a stranger from describing it. There is no authority affording the least ground for such a proposition.

The Solicitor-General [Sir John Romilly], Mr Serjeant Taljourd, and Mr. W. M. James, for the plaintiff. Leaving out all considerations of propriety and morality, and dealing with this as a plain question of law, we submit that, according to well-known principles recognized in Courts of Equity from the earliest times, the injunction is clearly sustainable. The case does not turn upon the question of copyright, but upon the clear and absolute property which Her Majesty and His Royal Highness had in the etchings, copies of which, without their knowledge and without their consent, it was proposed to exhibit for

the pecuniary profit of Mr. Strange and Mr. Judge. The principle is that the Court will restrain any person from making use of the property of another, contrary to the will and disposition of the owner. This principle extends to property of every description, and one species of property is as much regarded as another. ..

Might a person go into the library of a literary man and give an account of any literary work on which he was engaged, or make a catalogue of all his manuscripts? Take the case of a chemist engaged in experiments from which most important results had been obtained. Would not the Court interfere to prevent the publication of the results derived from the skill and industry of such a chemist, by a person who had been permitted to witness the experiments? Upon what principle does the Court interfere to prevent the publication of letters, or of recipes in medical science? Upon the principle that there is property in these things, and that the Court of Chancery will not permit another to derive a benefit by infringing the right to such property. [The VICE-CHANCELLOR. Would a discharged banker's clerk be allowed to publish the accounts of all the customers? I do not mean to say whether that has any analogy to this case or not.] We submit that he would not. . . It has been said that there has been here no violation of the right of private property. But there has been the abstraction of one attribute of property, which was often its most valuable quality, namely, privacy. All the cases in which the Court has interfered to protect unpublished letters or manuscripts, or that ideal property which a man acquires in the remarks made by himself, proceed upon that principle of protecting privacy. In literary property the copyright dates from the time when the author gave it to the world. But in the case of etchings and prints the copyright is not called into legal existence until certain conditions are performed; and there seems to be no statutory protection against copying a painting. It appears to be an omission in the Act, the words of which only extend to engravings, mezzotints, &c., so that the design of the painter, when conveyed in form and colour to the canvass, must rely upon the common law for protection. [The VICECHANCELLOR. Suppose the servant of a painter to make a copy of a painting in his master's studio. Could he exhibit it?] We submit that he could not. . . .

With regard to the analogy sought to be instituted on the other side, between the present case and that of an abridgment of a work, we are willing to adopt the analogy; and we ask the defendant's counsel to produce a case in which it has been held that a person had a right to publish an abridgment of a work of another which was never by publication made publici juris. The law, as laid down in Millar v. Taylor (4 Burr. 2417), conclusively establishes the contrary of such a proposition. The argument, in fact, proceeds upon a confusion of the right of property, which is here invaded, with the statutory title to copyright.

Copyright is not of a simple, but a complex, nature, involving two conditions, one of publication, and the other of exclusion. An author claims the right of multiplying the copies of his work, and of thus securing to himself present reputation and distant fame; and he also claims the advantage of excluding by statute law other persons from multiplying copies of the same work. But in this case the right claimed is like the right of an author to his unpublished work. It is the right of an artist to his unpublished engravings. In seeking the protection of that right from violation, he claims protection for the privacy of his property, the privacy being a valuable element of it. The subject of the right is property in its highest sense, because it is property of the owner's creation property the result of his genius and skill.

If the principle is to prevail that a person may get the production of another in any manner, and then publish such accounts of them to the world as he likes, a fatal blow will be struck at all privacy, no matter whether it exists in a lofty station, where it is confined within the narrow limits of a domestic circle, at all times necessarily much encroached upon amidst the round of public duty, or whether it exists in the humblest ranks of life. Whether it adds pecuniary value to property, as it does in many cases, or is only prized as a matter of affection and remem brance of feeling whether the result of destroying privacy may be to inflict pain upon the feelings of the individual, or, as in the present case, to increase the honour and affection in which he is held considerations are altogether immaterial to the question at issue.

such

Jan. 12, 1849. The VICE-CHANCELLOR [Sir J. L. KNIGHT BRUCE]. . . . The publisher's counsel contend that the injunction against him ought so far to be dissolved, insisting that the portion of it which they impeach is not supported by any ground of title that a court of justice can recognize or deal with. They contend, in substance, that, so far, the plaintiff complains of an offence not against law, but against manners; with reference to which Mr. Russell remarked, in effect (and I agree with him), that the order and well-being of life depend greatly on things not within the cognizance of laws, and can in very many instances not be protected or vindicated by them. It was asserted, indeed, by a great orator and writer of the last generation, and perhaps truly, that manners are of more importance than laws, as giving their whole form and colour to our lives. Still, however, some breaches of good manners are breaches of law also. There is no difficulty here about the former. The question, I agree, is of the latter.

The defendants' counsel say that a man acquiring a knowledge of another's property without his consent is not by any rule or principle which a court of ustice can apply (however secretly he may have kept or endeavored to keep it) forbidden without his consent to communicate and publish that knowledge to the world, to inform the world what the property is, or to describe it publicly, whether orally, or in print or writing.