was situated in the state of the last matrimonial domicile of the litigants. This interpretation of the case as being decided on the constructive presence of the wife is strengthened by the fact that thecourt cited Burlen v. Shannon1 and Hunt v. Hunt in support of its conclusion, in both of which the decision was based on the constructive presence of the defendant. In Haddock v. Haddock the husband deserted his wife in New York, the state of the last marital domicile, and went to Connecticut where he obtained a decree of divorce on service by publication only. The United States Supreme Court held that a husband who abandons his wife and goes to another state without wrong on her part takes with him only enough of the res to warrant a decree of divorce binding in the state where the judgment was rendered, and not one within the constitutional mandate of full faith and credit to be given by one state to the judicial proceedings of all others. In this decision there are many references to the last matrimonial domicile of the parties, but it cannot be said that standing alone it is authority for such a doctrine.

8

The decisions in the above cases have received various judicial interpretations, as authority for the constructive presence doctrine," the last matrimonial domicile theory, and as in no way establishing either. On whatever ground they were based, the Supreme Court of the United States by the case of Thompson v. Thompson1o evinced its acceptance of them as authority for holding that a court situated in the state where the parties were last domiciled as husband and wife has jurisdiction sufficient to grant a decree binding in all other states, even though the defendant was not present and was served by publication only. In discussing the Haddock case Mr. Justice Pitney said, "The New York court refused to give credit to the Connecticut judgment, and this court held that there was no violation of the full faith and credit clause in the refusal, and this because there was not at any time a matrimonial domicile in the state of Connecticut," and therefore the res-the marriage status-was not within the sweep of the judicial power of that state." It seems clear that decrees by courts in the state of the last matrimonial domicile are now regarded as within the full faith and credit clause of the constitution.

The decision of the court in the principal case, in holding itself not bound by the foreign decree, lays great stress on the last matrimonial domicile of the parties thereto, and appears to accept such fact as having determining jurisdictional effect. The universal recognition and application of such a rule would give three grounds for a court taking jurisdiction with the assurance that its decree would have extra-territorial effect: where both parties are before the court, or are

Supra, note I.

572 N. Y. 217 (1878).

6201 U. S. 562 (1906).

"Hammond v. Hammond, 103 App. Div. (N. Y.) 437 (1905).

Callahan v. Callahan, 121 N. Y. Supp. 39 (1910); Toncray v. Toncray, 123 Tenn. 476 (1910); Montmorency v. Montmorency, 139 S. W. (Tex.) 1168 (1911). "Gooch v. Gooch, 38 Okla. 300 (1913); Bruguiere v. Bruguiere, 172 Cal. 199 (1916). See also 2 CORNELL LAW QUARTERLY 335.

10226 U. S. 551 (1913).

"Italics are writer's.

constructively present, 12 or where the court is situated in the state where the parties were last domiciled. Theoretically such a doctrine is in accord with all justice and equity, and its application would go far in alleviating the hardship occasioned by conflicting divorce laws. Although the court here expressed itself as not being bound to recognize the Montana decree because the last marital domicile of the parties was not situated in that state, it nevertheless did so on grounds of comity. Examination of New York authority reveals that there is a conflict on this precise point, as to whether a foreign decree of divorce will be recognized if the defendant was served by publication only and was not domiciled in New York when it was granted. Borden v. Fitch13 and O'Dea v. O'Dea14 refused to give credit to such foreign judgment, but apparently gave no consideration to the fact that the defendant was not a citizen of New York when it was granted; Rundle v. Van Inwegan15 and the Matter of Caltabellotta1 likewise refused recognition, but this might have been based on the fact that the states where the respective defendants were domiciled would have taken similar action; while Percival v. Percival and Kaufman v. Kaufman18 held that such decrees would be received as the final adjudications in regard to the marital status of the parties.

It is obvious that a state, in the preservation of good morals and uniformity of judicial action, should recognize foreign decrees of divorce wherever it is not opposed to the public policy of such state. The refusal of the New York courts to do so has been based on such policy, it being said that "We must and do concede, that a state may adjudge the status of its citizen toward a nonresident; and may authorize to that end such judicial proceedings as it sees fit; and that other states may acquiesce, so long as the operation of the judgment is kept within its own confines. But that judgment cannot push its effect over the borders of another state, to the subversion of its laws and the defeat of its policy; nor seek across its bounds the person of its citizen, and fix upon him a status, against his will and without his consent, and in hostility to the laws of the sovereignty of his allegiance."19 This rule of public policy grows out of the control of the state over its citizens, is designed solely for their protection, and logically can have reference only to the dissolution of a marriage of one of its citizens. With the proof that the defendant was not a resident of New York when the decree was granted the reason for the rule fails, and the rule should have no efficacy. To hold it still of determining weight might place upon an innocent party an unwarranted degradation and burden, cause the illegitimacy of children, affect

12 Pennsylvania alone holds that a wife may acquire a separate domicile without wrong on her husband's part, and consequently refuses to recognize her constructive presence in the state of his domicile on service by publication. See Colvin v. Reed, supra, note 2.

1815 Johns. (N. Y.) 121 (1818).

14101 N. Y. 23 (1885).

159 Civ. Proc. (N. Y.) 328 (1886).

16183 App. Div. (N. Y.) 753 (1918).

17106 App. Div. (N. Y.) 111 (1905), affirmed without opinion in 186 N. Y. 587

property rights, and inflict injury on parties in whom New York had no interest when the judgment was sought and obtained. J. W. Reavis, '21.

Equity: Right of Privacy: Injunction to protect Personal Rights. -Does a court of equity have jurisdiction to enjoin the continuance of conduct, which violates the personal rights of the plaintiff and tends to besmirch his good name and bring humiliation upon and disgrace to him and his family? The case of Stark v. Hamilton, 99 S. E. (Ga.) 861 (1919), would seem to decide this question in the affirmative and to take a further step in the recognition of a right of privacy and in the protection of this right by equitable remedies. In this case the defendant, Stark, debauched the minor daughter of the plaintiff, Hamilton, induced her to abandon her parental abode and to live with him in a state of adultery and fornication and was persisting in the continuance of such conduct. Hamilton, the father, brought a bill for an injunction, praying that Stark be enjoined "from associating with the girl and from communicating with her in any way, either by writing, telephoning, telegraphing, or through the aid and agency of any other person.'

In an article in the Harvard Law Review,1 following one of the first cases2 in this country that involved this right of privacy,it is contended that "The design of the law must be to protect those persons with whose affairs the community has no legitimate concern, from being dragged into undesirable and undesired publicity and to protect all persons, whatsoever their position or station, from having matters, which they may properly prefer to keep private, made public against their will. It is unwarranted invasion of individual privacy." This right may be said to be the right to be free from unauthorized interference with one's legitimate privacy; the right not to be subjected to such publicity in one's private affairs as will cause mental distress. It should not be as extensive as stated by Parker, C. J., in Roberson v. Rochester Folding Box Co.,3 where paraphrasing the plaintiff's claim, he states it to be that "a man has a right to pass through this world, if he wills, without having his picture published, his business enterprise discussed his successful experiments written up for the benefit of hers, or his eccentricities commented upon either in handbills, circulars, catalogues, periodicals or newspapers, and necessarily, that the things, which may not be written or published of him must not be spoken of him by his neighbors, whether the comment be favorable or otherwise." Some publicity and criticism of the individual is inevitable, and not only innocuous, but perhaps desirable from the standpoint of the public interest. But it is very evident that as to each member of

'Article by Louis D. Brandeis and Samuel D. Warren in 4 Harv. L. Rev. 193. 2Manola v. Stevens (1890), unreported. See 4 Harv. L. Rev. 193, 195. This was a New York case and involved the taking of a picture of the plaintiff by the defendant, by means of a flashlight, while she was playing in a Broadway theater, being dressed in the costume demanded by her role, the picture being taken without her consent. She prayed for the issuance of an injunction to restrain the use of the picture and an interlocutory injunction was granted ex parte. The defendant failed to appear and the injunction was made permanent. 3171 N. Y. 538 (1902), at p. 544.

society, there are matters private and there are matters public in so far as that individual is concerned. The wrongful act of the defendant which gives rise to the cause of action is a breach of the obligation correlative to the plaintiff's right, the unauthorized subjection of the plaintiff to unreasonable publicity causing him anxiety, mortification, or distress.

Some of the specific acts of this nature against which the plaintiff has sought the court's protection are: freedom from the annoyance of public surveillance by detectives; the assumption of plaintiff's name as an assault upon the identity and individuality of the plaintiff as the wife of a certain man5; use of the plaintiff's picture; the use of the name, picture or statue of a deceased member of the plaintiff's family; publicly attributing to the plaintiff an illegitimate child, of which he was not the father, by the filing of the birth certificate, naming him as the fathers; seeking to alienate the affections of the plaintiff's wife."

9

Some of the courts refuse absolutely to recognize that the right of privacy exists in our modern jurisprudence. The most striking example of this is in the Roberson case1o, where the court said that the so-called right of privacy had not found an abiding place in our jurisprudence and that the doctrine could not be incorporated without doing violence to the settled principles by which the profession and public had long been guided. Contrary to the ruling of these cases are two cases in Louisiana" where the existence of this right was recognized and protected by injunctions. Both of these cases involved publishing the plaintiffs' pictures in the rogues' gallery after their arrest but before they had been convicted. The court said, "Everyone, who does not violate the law, can insist upon being let alone." So in the case of Kunz v. Allen12 recovery was allowed at law for the publishing of the plaintiff's picture without his consent.

Without exception, however, all jurisdictions have refused to protect this so-called right of privacy, unless there has been also an infringement of a property right or a breach of trust and confidence upon which the court could base the right to injunctive relief. Because

'Chappel v. Stewart, 82 Md. 323 (1896).

"Hodecker v. Stricker, 39 N. Y. Supp. 515 (1896).

Roberson v. Rochester Folding Box Co., supra, note 3; Pavesick v. N. E. Life Insurance Co., 122 Ga. 190 (1904); Kunz v. Allen, 102 Kan 883 (1918); Pollard v. Photographic Co., 40 Ch. Div. 345 (1888).

'Schuyler v. Curtis, 15 N. Y. Supp. 787 (1892), aff'd 24 N. Y. Supp. 509 (1893), reversed 147 N. Y. 436 (1895).

Vanderbilt v. Mitchell, 72 N. J. Eq. 910 (1907).

Ex parte Warfield, 40 Tex. Crim. Rep. 413 (1899).

10 Supra, note 3. See also Baird v. Wells, 44 Ch. Div. 661 (1890); Chappel v. Stewart, supra, note 4.

"Itzkovitch v. Whitaker, 115 La. 479 (1905); Schulman v. Whitaker, 117 La. 704 (1906).

12 Supra, note 6. See also on this point of the recognition of a right of privacy, Douglas v. Stokes, 149 Ky. 506 (1912). In this case a photographer took negatives of the dead body of the plaintiff's child and, without the parent's consent, had them copyrighted. The action was a legal one, the court holding that the defendant was liable for damages for invading the right of privacy of the parent in the body of his child; and see also, Marks v. Jaffa, 26 N. Y. Supp. 908 (1893), overruled later by the Roberson case, supra, note 3; and Ex parte Warfield, supra,

note 9.

of the novelty of the doctrine and the lack of precedent the courts have been reluctant to adopt a step so advanced.13

15

* * * ""

However, by dicta, some courts have shown an emphatic recognition of the right and the inclination to protect it in the absence of a property right.14 Probably the strongest dictum is found in Vanderbilt v. Mitchell. 16 In reversing the decision rendered by Garrison, V. C.,16 the court states: "If it appeared in this case that only the complainant's status and personal rights were thus threatened or thus invaded by the actions of the defendants and by the filing of the false certificate, we should hold, and without hesitation, that an individual has rights, which he can enforce in a court of equity and which a court of equity will enforce against invasion, and we should declare that the complainant was entitled to relief, to a decree establishing the truth as to the paternity of the child But the court goes on to say that it is not necessary to place the decision on this ground, as there are sufficient facts presented "to put this case upon the technical basis that the jurisdiction we are exercising is the protection of property rights." The New Jersey court disagrees strongly with the decision in the Roberson case,1 and cites a Georgia case1s in support of its own dictum. This case is hardly less strong in its language in regard to the existence of a right of privacy in this jurisdiction. But there, also, there is only a dictum, for the court found the publishing of the plaintiff's picture to be a libel in the light of extrinsic facts. However, as to the right of privacy, the court states, "So thoroughly satisfied are we that the law recognizes within proper limits, as a legal right, the right of privacy that we venture to predict that the day will come when the American Bar will marvel that a contrary view was ever entertained by judges of eminence and ability." There can be no doubt that there is much truth in this prophesy. Equity has before shown itself reluctant to extend its remedies. This is

* * *

13For cases where the court has laid hold of a property right, see Gee v. Pritchard, 2 Swanston (Eng.) 402 (1818). It was from this case that the courts obtained their theory of a property right. Here an injunction was asked to restrain the printing of personal letters. The court held that it would not grant the injunction on the ground that the letters were written in confidence or because such publication would wound the feelings of the plaintiff, but would grant it for the protection of the property right which was jointly in both the sender and the receiver of the letters. See also Vanderbilt v. Mitchell, 71 N. J. Eq. 632 (1906), in which case the court held that there was no property involved, so the court could not protect the personal right, but the case was reversed in 72 N. J. Eq. 910 (1907) and the decision based upon a property right. See Hodecker v. Striker, supra, note 5 where demurrer was sustained as there was no property right involved. And see Williams v. Prince of Wales Life Co., 23 Beav. (Eng.) 338 (1857); Woolsey v. Judd, 11 How. Prac. (N. Y.) 49 (1855); Folsom v. Marsh, 9 Fed. Cas. No. 4901 (1841); Pollard v. Photographic Co., supra, note 6.

14Pollard v. Photographic Co., supra,note 6. The court here said that the right did not depend in any way on the property right as alleged and that chancery has original and independent jurisdiction to prevent what the court considers and treats as a wrong; but the injunction was granted on the theory of a breach of contract or trust. See also Munden v. Harris, 153 Mo. App. 652 (1910); Hodgman v. Olsen, 86 Wash. 615 (1915).

15 Supra, note 8.

16Reported in Vanderbilt v. Mitchell, 71 N. J. Eq. 632 (1906).

17 Supra, note 3.

18Pavesick v. Ñ. E. Life Insurance Co.,s upra, note 6.