394
THE GREEN BAG
the company from liability in case he should die before he finally decided to accept the policy. It was explained to him that the note could not be collected until he indorsed it, so that he would be perfectly safe in giving it. The transaction occurred in a corral or barn-yard and defendant was instructed to sign the applica tion for the policy and the release of liability mentioned and a book with several papers upon it was given him, the papers being placed there with the ostensible purpose of making the book smooth to write upon. A fountain pen was also furnished by the agents with the instruction to bear on hard as the pen was stiff. Afterwards, it transpired, that in signing the release of liability, the ink in some manner penetrated through the paper so as to cause defendant's name to appear as an indorsement on the note. Under these circumstances, it was contended that the alle gations of fraud did not amount to a denial that the defendant indorsed the note and that if the note was indorsed through the physical act of the defendant, he was responsible for the payment of the note and for the results of that physical act to an innocent purchaser. It is however held that it is not the physical act which constitutes a transaction of this kind, but the intention of the parties to the contract, and that as the evidence showed that the indorsement was the effect of a fraudulent device and trick, for which the defendant was not responsible, he was not liable on the note even to a bona fide holder. The other question of importance in the case arose from the admission of the evidence of a number of other persons that during the same month in which the transaction with defen dant took place, the same solicitors had obtained their indorsements of notes in the same manner and under the same circumstances. It was con tended for plaintiff, that under the ruling of the case of McKay v. Russell, 3 Wash. State 378, 28 Pac. 908. this testimony was inadmissible. That case was an action to recover money paid upon a contract for the sale of real estate on the ground that the sale was procured by fraudu lent representations, and it was held therein that it was inadmissible to show that in a similar transaction prior thereto defendant had made like misrepresentations to another person. That case is however distinguished from the case at Bar by the observation that there was there no testimony offered to show a general scheme connecting the transaction, which it was sought to prove, with the transaction in issue; and it is held that inasmuch as in this case the circum stances of each transaction were not only similar but peculiar, the evidence was admissible for
the purpose of showing a general scheme or planto defraud. RIGHT OF PRIVACY. (UNAUTHORIZED PUBLI CATION OF PICTURE) SUPREME COURT OF GEORGIA.. A valuable contribution to the exceedingly lim ited number of judicial opinions involving the existence and scope of the much mooted "right of privacy" is the opinion of the Supreme Court of Georgia, in Pavesich v. New England Life In-surance Co. et al., 50 Southeastern Reporter 68. The question of the existence of this right has given rise to a vast deal of discussion, most of which, however, has been purely academic, theonly adjudicated case involving a direct decision as to its existence being the comparatively recent one of Roberson v. Rochester Folding Box Co.,. 64 Northeastern 441, heretofore noted in thismagazine. In that case, the New York Court of Appeals, by a divided court, denied that any such right existed. The Georgia court expressly disapproves this case, and follows the dissenting opinion of Judge Gray. The opinion of the Georgia Court, by Cobb, J., contains a complete and scholarly argument in support of the court's conclusion and is supported by citations, both ancient and modern. The fact that no precedent for the decision exists, is admitted; but such ab sence, even for all time, is not conclusive of the question as to the existence of the right. The novelty of the complaint is no objection, when aninjury cognizable by law is shown to have been inflicted on the plaintiff. In such a case, al though there be no precedent, the common law will judge according to the law of nature and the public good. The elemental concepts of individual liberty and security are called upon to witness the exis tence of the right of privacy, and it is said, "The right of privacy has its foundation in the instincts of nature." On this point, it is said, "The term 'liberty' embraces far more than freedom front physical restraint, and includes the right of a man to be free in the enjoyment of the faculties with which he has been endowed by his Creator, subject only to such restraints as are necessary for the common welfare. 'Liberty,' in its broad sense, as understood in this country, means the right not only of freedom from servitude, impris onment or restraint, but the right of one to usehis faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avoca tion. The right of one to exhibit himself to the public at all proper times, under proper circum stances is embraced within the right of personal
