In all cases, whether the arrest be for a felony or for a breach of the peace, the party arrested must be taken before a magistrate 189 without delay.

Enforcement of Discipline, etc.

192

Under this head may be grouped several instances where a right of detention is recognized. Thus, for disciplinary purposes, a parent or one deputed by him may impose restraint upon his child, a guardian of the person upon his ward, and probably a master upon his apprentice.100 So may a schoolmaster upon his pupil,191 and a ship's captain on passengers and crew during the voyage.1 The common law supposed the principal to be in custody of his bail, and the bail may take him when he pleases, either personally or by an authorized agent, since if it were not so he "might often be exposed to great and unnecessary hazard." 103 As it has been forcibly put, "the bail have their principal always upon a string, and may pull the string whenever they please, and render him in their own discharge.' "194 Another illustration is found in the case of one of unsound mind, who may be restrained either by an officer or private person, but only if he is dangerous to

Kuhne, 153 App. Div. 216, 137 N. Y. Supp. 1090, affirmed 208 N. Y. 555, 101 N. E. 1104.

189 Linnen v. Banfield, 114 Mich. 93, 72 N. W. 1; Tobin v. Bell, 73 App. Div. 41, 76 N. Y. Supp. 425.

190 Cooley on Torts (3d Ed.) 299. And see Penal Law N. Y. (Consol. Laws, c. 40) § 246, subd. 4.

191 See Fertich v. Michener, 111 Ind. 472, 11 N. E. 605, 14 N. E. 68, 60 Am. St. Rep. 709, holding that detention after school hours "has none of the elements of false imprisonment about it, unless imposed from wanton, willful, and malicious motives."

192 "The inquiry, then, is whether it was proper for the support of discipline and subordination on board the ship to resort to this measure." Gardner v. Bibbens, Fed. Cas. No. 5,222, 1 Blatchf. & H. 356. To the same effect, Brown v. Howard, 14 Johns. (N. Y.) 120; King v. Franklin, 1 F. & F. 360.

193 Parker v. Bidwell, 3 Conn. 84, 86, per Hosmer, C. J. To the same effect, Comm. v. Brickett, 8 Pick. (Mass.) 138; Nicolls v. Ingersoll, 7 Johns. (N. Y.) 145. And see Code Civ. Proc. N. Y. § 593; Code Cr. Proc. N. Y. § 591.

194 Anonymous, 6 Mod. 231; Read v. Case, 4 Conn. 166, 171, 10 Am. Dec. 110.

himself or others,195 and he cannot be detained indefinitely, or until he becomes harmless, but must be delivered to his friends, or to the proper authorities.196 A carrier may not restrain a passenger for the purpose of compelling him to pay fare,197 though he may do so for a reasonable time in order to inquire into the circumstances of the case.19

195 Look v. Dean, 108 Mass. 116, 11 Am. Rep. 323; Keleher v. Putnam, 60 N. H. 30, 49 Am. Rep. 304; Emmerich v. Thorley, 35 App. Div. 452, 54 N. Y. Supp. 791; Fletcher v. Fletcher, 28 L. J. Q. B. 134. 196 Colby v. Jackson, 12 N. H. 562. And see Penal Law N. Y. (Consol. Laws, c. 40) § 246, subd. 6.

197 Lynch v. Metropolitan El. R. Co., 90 N. Y. 77, 43 Am. Rep. 141. 198 Standish v. Narragansett S. S. Co., 111 Mass. 512, 15 Am. Rep. 66.

SEDUCTION

66. Seduction is "the wrong of inducing a female to consent to unlawful sexual intercourse, by enticements and persuasions overcoming her reluctance and scruples." ." 199 Logically the woman cannot sue, because she has consented. Volenti non fit injuria.200 In some states, however, she is given a statutory cause of action.201 The right of the husband, parent, and master to recover against the seducer is elsewhere discussed.202

199 Abb. L. Dict. quoted in Hood v. Sudderth, 111 N. C. 215, 220, 16 S. E. 397.

200 Welsund v. Schueller, 98 Minn. 475, 108 N. W. 483, 8 Ann. Cas. 1115; Robinson v. Musser, 78 Mo. 153; Hamilton v. Lomax, 26 Barb. (N. Y.) 615. Cf. Graham v. Wallace, 50 App. Div. 101, 63 N. Y. Supp. 372, sustaining an action by a ward against her guardian. Where adultery and fornication are crimes, the woman is particeps criminis, and hence cannot be heard to complain of a wrong which she helped to produce. Paul v. Frazier, 3 Mass. 71, 3 Am. Dec. 95; Oberlin v. Upson, 84 Ohio St. 111, 95 N. E. 511. But see Hood v. Sudderth, 111 N. C. 215, 16 S. E. 397 (female over 21). Cf. Scarlett v. Norwood, 115 N. C. 284, 20 S. E. 459.

201 Code Civ. Proc. Cal. § 374 (if unmarried); Marshall v. Taylor, 98 Cal. 55, 32 Pac. 867, 35 Am. St. Rep. 144; Burns' Ann. St. Ind. 1914, § 264 (if unmarried); McCoy v. Trucks, 121 Ind. 292, 23 N. E. 93; St. Mich. (How. Ann. St. [2d Ed.] 1912) § 13132; Greenman v. O'Riley, 144 Mich. 534, 108 N. W. 421, 115 Am. St. Rep. 466. Proof of her unchastity at the time of the alleged seduction is a bar to recovery, though chastity, once lost, may be regained by repentance and reformation. See Robinson v. Powers, 129 Ind. 480, 28 N. E. 1112; Greenman v. O'Riley, 144 Mich. 534, 108 N. W. 421, 115 Am., St. Rep. 466.

202 See infra, pp. 459, 468, 473.

CHAPTER IX

THE RIGHT OF PRIVACY

67. Whether and to what extent the law will recognize the existence of a so-called "right of privacy" is not clear. The decisions hereafter considered have dealt almost entirely with the use of picture or name for commercial purposes and are in conflict.

In its widest sense, "the so-called right of privacy is, as the phrase suggests, founded upon the claim that a man has the right to pass through this world, if he wills, without having his picture published, his business enterprises discussed, his successful experiments written up for the benefit of others or his eccentricities commented upon either in hand bills, circulars, catalogues, periodicals, or newspapers, and necessarily that the things which may not be written and published of him must not be spoken of him by his neighbors, whether the comment be favorable or otherwise." 1 It is evident that such a claim cannot be sanctioned. But up to a certain point one may well assert "the right to be let alone," 2 though how far this extends has not been determined. Cases have largely dealt with the use of plaintiff's picture or name for advertising or trade purposes. This question was not squarely presented until in 1902, when the New York Court of Appeals

1 Roberson v. Rochester Folding Box Co., 171 N. Y. 538, 544, 64 'N. E. 442, 59 L. R. A. 478, 89 Am. St. Rep. 828, per Parker, C. J.

2 See "The Right of Privacy," 4 Harvard L. R. 193, 195 (Dec. 1890), where the theory that such a right existed was probably first advanced.

3 While the right of privacy had tentatively been presented to the courts, the decisions had been based upon other grounds, e. g., a violation of property rights, Albert v. Strange, 2 De G. & Sm. 652, 13 Jur. 507, 64 Eng. Repr. 293; Gee v. Pritchard, 2 Swanst. 402, 19 Rev. Rep. 87, 36 Eng. Repr. 670; lack of personal interest, Schuyler v. Curtis, 147 N. Y. 434, 42 N. E. 22, 31 L. R. A. 286, 49 Am. St. Rep. 671; Atkinson v. John E. Doherty & Co., 121 Mich. 372, 80 N. W. 285, 46 L. R. A. 219, 80 Am. St. Rep. 507; public character of the subject, Corliss v. E. W. Walker Co. (C. C.) 64 Fed. 280, 31 L. R. A. 283.

refused an injunction and damages, this conclusion being based, it would seem, largely upon the argument ab inconvenienti and because of a lack of precedent. Three years later, the Supreme Court of Georgia took a different and, it is submitted, a better view," asserting in broad language that such a right existed. Ranged with Georgia will be found Kentucky, Missouri,' and New Jersey. Some of these decisions treat the right of privacy as a property right. On the other hand, in Rhode Island the reasoning of the New York Court of Appeals has been approved.

4 Roberson v. Rochester Folding Box Co., supra. It was said (171 N. Y. 544, 64 N. E. 443, 59 L. R. A. 478, 89 Am. St. Rep. 828): "If such a principle be incorporated into the body of the law through the instrumentality of a court of equity, the attempts to logically apply the principle will necessarily result, not only in a vast amount of litigation, but in litigation bordering upon the absurd, for the right of privacy, once established as a legal doctrine, cannot be confined to the restraint of the publication of a likeness, but must necessarily embrace as well the publication of a word picture, a comment upon one's looks, conduct, domestic relations, or habits." Subsequent to this decision a statute gave a cause of action for the unauthorized use of the name or picture of any person for advertising purposes or for the purposes of trade. Consol. Laws N. Y. c. 6, art. 5, amended by Laws 1911, c. 226, held constitutional in Sperry & Hutchinson Co. v. Rhodes, 220 U. S. 502, 31 Sup. Ct. 490, 55 L. Ed. 561. For construction of this statute, see Binns v. Vitograph Co. of America, 210 N. Y. 51, 103 N. E. 1108, L. R. A. 1915C, 839, Ann. Cas. 1915B, 1024; Colyer v. Richard K. Fox Pub. Co., 162 App. Div. 297, 146 N. Y. Supp. 999; D'Altomonte v. New York Herald Co., 154 App. Div. 453, 139 N. Y. Supp. 200.

Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S. E. 68, 69 L. R. A. 101, 106 Am. St. Rep. 104, 2 Ann. Cas, 561.

6 Foster-Milburn Co. v. Chinn, 134 Ky. 424, 120 S. W. 364, 34 L. R. A. (N. S.) 1137, 135 Am. St. Rep. 417.

7 Munden v. Harris, 153 Mo. App. 652, at page 660, 134 S. W. 1076, at page 1079, where it was concluded "that one has an exclusive right to his picture on the score of its being a property right of material profit," also "a property right of value, in that it is one of the modes of securing to a person the enjoyment of life and the exercise of liberty."

• Edison v. Edison Polyform & Mfg. Co., 73 N. J. Eq. 136, 67 Atl.

• Henry v. Cherry, 30 R. I. 13, 73 Atl. 97, 24 L. R. A. (N. S.) 991, 136 Am. St. Rep. 928, 18 Ann. Cas. 1006.

CHAP.TORTS-19