of the defendants, bama court to a judgment for one of the But but makes it | visions of our law as to judgments in legal depend solely upon the existence of a proceedings, the objection urged by the Alamutual indebtedness between one or more of the persons suing and one or more of the persons sued. To illustrate my view of the statute, suppose A, B, and C indebted to E in $1,000, and E at the same time indebted to A in the like sum of $1,000. A sues E for the debt. Can E set off the debt due to him from A, B, and C? Certainly. Why? Because there exists between him and the plaintiff a mutual indebtedness. Each owes the other a debt, and, the law having made the debt of A, B, and C several as well as joint, E has an election to treat it as the individual debt of A, and, so regarding it, there is certainly, in the most strict understanding of the term, a mutuality of indebtedness between the parties A and E. But suppose the suit brought by E against A, B, and C, would not the same mutuality of indebtedness exist between A and E? I answer that it would, and that, according to the letter as well as the spirit of the statute, A would have a legal right to set off the debt due to him from E." Attention is directed to the similarity of the Arkansas statute under discussion by the learned chief justice and our own, and to the fact that in both the requirement of the law is that the demands shall be mutual. And in the subsequent case of Lcach v. Lambeth, 14 Ark. 668, the principle laid down by the majority in Trammell v. Harrell was overruled, and by a unanimous decision the views expressed by the chief justice in his dissenting opinion in that case were adopted as the law applicable to the subject under discussion. See also Burke v. Stillwell, 23 Ark. 294. And for decisions of other states to a like effect, see Pitcher v. Patrick, Minor (Ala.) 321, 12 Am. Dec. 54; Carson v. Barnes, 1 Ala. 93; Sledge v. Swift, 53 Ala. 110; Huddleston v. Askey, 56 Ala. 218; Riley v. Stallworth, 56 Ala. 481; Locke v. Locke, 57 Ala. 475; Childerston v. Hammon, 9 Serg. & R. 68; Robinson v. Beall, 3 Yeates, 267; Miller v. Kreiter, 76 Pa. 78; Dunn v. West, 5 B. Mon. 377. In Locke v. Locke, 57 Ala. 475, the following language is used: "If, as the verdict tends to show, the set-off was due to only one of the defendants, this would constitute a good defense to plaintiff's action, but would not authorize a recovery for the excess, for the reason that such recovery would require a change, to that extent, of the parties to the judgment. In fact, it would, in effect, require two judgements; one in favor of one defendant for the certified balance, and the other in favor of all the defendants for the costs of the suit. This cannot be done in legal proceedings." Under the liberal pro In Threlkeld v. Dobbins, 45 Ga. 144, relied on as authority by counsel for the defendant in error, Judge McCay said: "Independently of the settled rule, under the English statutes of set-off, our Code provides that set-off must be between the same parties, and in their own right. Code, § 2850. This section of the Code, however, recognizes some special exceptions. Two are mentioned, to wit, the case of a surviv ing partner, and a debt due to the principal in a suit against the principal and security." Tracing back the latter of the two called exceptions to its origin, we have reached the conclusion that, instead of being an exception to the rule, it is within the rule recognized in Georgia from the beginning in regard to the law of set-off. The original act allowing set-off under the law of Georgia was passed in 1799, being part of the judiciary act. Prince's Dig. 425. It contained no reference whatever to suits against principal and security. The provision of the Code referred to by Judge McCay, which is now a part of Civil Code 1895, Paolo PAVESICH, Plff. in Err., v. ENGLAND LIFE INSURANCE (...... Ga. .) *1. The absence, for a long period of § 3747, made its appearance for the first time in Code 1863, § 2842, and was evidently codified from the decision of this court in NEW the early case of Harrison v. Henderson, 4 Ga. 198. It was there held that in an action against principal and surety the principal might set off his individual demand against the plaintiff. In the opinion (p. 199) Judge Warner, after discussing the act of 1799, authorizing the plea of set-off, and quoting therefrom, said: "The objection urged against the set-off is that the demand of the plaintiff is a joint demand, and the debt offered to be set off is the separate demand of Harrison against the plaintiff. It is true, as a general rule, that a separate demand cannot be set off against a joint demand; but the plaintiff's demand here is several as well as joint. We must look to the original character of the contract; for the plaintiff, by pursuing his remedy against them as joint contractors, does not alter the original character of the contract itself. When we look at the contract, we see it is the separate contract of Harrison with the plaintiff, secured by the joint security of Sims." It will thus be seen that under the statute of set-off as originally enacted, which has not been amended in this respect, it was recognized that in a suit on a several obligation the defense was available to any one or more of the defendants; and the subsequent codification of this decision certainly did not operate to alter its effect. It will thus be seen that it is quite erroneous to argue that, because the codifiers have named two specific instances in which one or more of several codefendants may plead. The Constitution declares that the set-off, the plea cannot be interposed in any other case where more than one defendant is sued in the same action. We have discussed this question at such great length, not only because of the apparent doubt cast upon it by the decision in the case of Threlkeld v. Dobbins, but also on account of its far-reaching importance to the commercial world. Applying what has been said to the facts of this case, our conclusion is that, the contract of Williams and that of Mrs. Wilson being several, it was competent for the latter to set off her individual claim against that of the plaintiff. 2. The defendant, May C. Wilson, having filed a valid plea of set-off, the plaintiff could not, without making some sort of showing, dismiss its action So as to prejudice her right to a hearing on the claim set up in her plea. Civil Code 1895, §§ 3754, 4970; Simon v. Myers, 68 Ga. 76. Judgment reversed. All the Justices concur. 4. Personal security includes the right to exist, and the right to the enjoyment of life while existing, and is invaded, not only by a deprivation of life, but also by a deprivation of those things which are necessary to the enjoyment of life according to the nature, temperament, and lawful desires of the individual. 5. Personal liberty includes, not only freedom from physical restraint, but also the right "to be let alone;" to determine one's mode of life, whether it shall be a life of publicity or of privacy; and to order one's fe and manage one's affairs in a manner that may be most agreeable to him so long as he does not violate the rights of others or of the public. 6. Liberty of speech and of the press, when exercised within the bounds of the constitutional guaranties, are limitations upon the exercise of the right of privacy. liberty of speech and of the press must not be abused, and the law will not permit the right of privacy to be asserted in such a way as to curtail or restrain such liberties. The one may be used to keep the other within lawful bounds, but neither can be lawfully used to destroy the other. 8. The right of privacy may be waived, either expressly or by implication, except as to those matters which law or public policy demands shall be kept private, but a waiver authorizes an invasion of the right only to such an extent as is to be necessarily inferred from the purpose for which the waiver is made. A waiver for one purpose, and in favor of one person or class, does not authorize an invasion for all purposes, or by all persons and classes. 9. One who seeks public office, or any person who claims from the public approval or patronage, waives his right of privacy to such an extent that he cannot restrain or impede the public in any *Headnotes by COBB, J. NOTE. AS to the right of privacy, see also, in this series, Roberson v. Rochester Folding Box Co. 39 L. R. A. 478, and footnote thereto. proper investigation into the conduct of his private life which may throw light upon the question as to whether the public should bestow upon him the office which he seeks, or accord to him the approval or patronage which he asks. The holder of public office makes a waiver of a similar nature, and subjects his life at all times to closest scrutiny, in order that it may be determined whether the rights of the public are safe in his hands. 10. The conclusion and reasoning of the majority in the case of Roberson v. Rochester Folding Box Company, 64 N. E. 442, 59 L. R. A. 478, 89 Am. St. Rep. 828, 171 N. Y. 540, criticized and disapproved; and the reasoning of Judge Gray, in his dissenting opinion, adopted and followed. which would be easily recognized by his friends and acquaintances, placed by the side of the likeness of an ill-dressed and sickly looking person. Above the likeness of the plaintiff were the words: "Do it now. The man who did." Above the likeness of the other person were the words: "Do it while you can. The man who didn't." Below the two pictures were the words: "These two pictures tell their own story." Under the plaintiff's picture the following appeared: "In my healthy and productive period of life I bought insurance in the New England Mutual Life Insurance Co., of Boston, Mass., and to-day my family is pro11. The publication of a picture of a person, without his consent, as a part of tected and I am drawing an annual dividend an advertisement, for the purpose of exploit-on my paid-up policies." Under the other ing the publisher's business, is a violation of the right of privacy of the person whose picture is reproduced, and entitles him to recover, without proof of special damage. 12. The publication of one's picture, without his consent, for such a purpose, is in no sense an exercise of the liberty of speech or of the press, within the meaning of those terms as used in the Constitution. 13. Words which are harmless in themselves may be libelous in the light of extrinsic facts. 14. A publication which imputes to one language which is known to those among whom he lives to contain statements which are false is libelous. person's picture was a statement to the effect that he had not taken insurance and now realized his mistake. The statements were signed, "Thomas B. Lumpkin, General Agent." The picture of the plaintiff was taken from a negative obtained by the defendant Lumpkin, or some one by him authorized, from the defendant Adams, which was used with his consent, and with knowledge of the purpose for which it was to be used. The picture was made from the negative without the plaintiff's consent, at the instance of the defendant insurance company, through its agent, Lumpkin. Plaintiff is an artist by profession, and the publication is peculiarly offensive to him. The statement attributed to plaintiff in the publication is false and malicious. He never made any such statement, and has not, and never has had, a policy of life insurance with the defendant company. The publication is malicious, and tends to bring plaintiff into ridicule before the world, and especially with his friends and acquaintances, who know that he has no policy in the defendant company. The publication is a "trespass upon plaintiff's right of privacy, ER RROR to the City Court of Atlanta to and was caused by breach of confidence and review a judgment in favor of defend- trust reposed" in the defendant Adams. The ants in an action brought to recover dam- prayer was for damages in the sum of $25.ages for the alleged infringement of plain-000. The petition was demurred to generaltiff's right of privacy by the unauthorized ly, and specially on the grounds that there publication of was a misjoinder of defendants and causes his portrait and alleged of action, that no facts were set forth from libelous matter in connection therewith. which malice can be inferred, and that no Reversed. special damages were alleged. The court sustained the general demurrer, and the plaintiff excepted. 15. A publication of an advertisement Statement by Cobb, J.: Paolo Pavesich brought an action against the New England Mutual Life Insurance Company, a nonresident corporation, Thomas B. Lumpkin, its general agent, and J. Q. Adams, a photographer, both residing in the city of Atlanta. The allegations of the petition were, in substance, as follows: In an issue of the Atlanta Constitution, a newspaper published in the city of Atlanta, there appeared a likeness of the plaintiff, Messrs. Westmoreland Brothers and To charge one with doing a thing which the law authorizes to be done can never be the subject-matter of a libel. Hollenbeck v. Hall, 103 Iowa, 214, 39 L. R. A. 734, 64 Am. St. Rep. 175, 72 N. W. | protect against invasion. It is to be con 518. A libel must be, first, a false and malicious defamation, and, secondly, the reputation of the individual libeled must be injured by exposing him to public hatred, contempt, and ridicule. Code, 3832. So the word "defamation" implies, first, that the individual possessed good fame, and, secondly, that the thing written of him withdrew from him a portion of this, leaving him upon the whole with less than he had at first. False statements which tend to promote the good character of a man, and do not in fact defame or injure, are not actionable. Legg v. Dunleavy, 80 Mo. 558, 50 Am. Rep. 512; Dun v. Maier, 27 C. C. A. 100, 52 U. S. App. 381, 82 Fed. 169. An innuendo cannot introduce new matter, nor change the natural meaning of the words. ceded that prior to 1890 every adjudicated case, both in this country and in England, which might be said to have involved a right of privacy, was not based upon the existence of such right, but was founded upon a supposed right of property, or a breach of trust or confidence, or the like, and that therefore a claim to a right of privacy, independent of a property or contractual right, or some right of a similar nature, had, up to that time, never been recognized in terms in any decision. The entire absence for a long period of time, even for centuries, of a precedent for an asserted right should have the effect to cause the courts to proceed with caution before recognizing the right, for fear that they may thereby invade the province of the lawmaking power; but such absence, 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 an Watters v. Retail Clerks' Union, No. 479, injury cognizable by law is shown to have 120 Ga. 424, 47 S. E. 911. The publication must have a personal, and not an impersonal, application. Stewart v. Wilson, 23 Minn. 449. The right of privacy has been repudiated by every court of last resort that has considered the subject-matter. Schuyler v. Curtis, 27 Abb. N. C. 387, 15 N. Y. Supp. 787, 64 Hun, 594, 19 N. Y. Supp. 264, 30 Abb. N. C. 376, 24 N. Y. Supp. 509, 147 N. Y. 434, 31 L. R. A. 286, 49 Am. St. Rep. 671, 42 N. E. 22; Marks v. Jaffa, 6 Misc. 290, 26 N. Y. Supp. 908; Murray v. Gast Lithographic & Engraving Co. 8 Misc. 36, 28 N. Y. Supp. 271; Roberson v. Rochester Folding Box Co. 171 N. Y. 540, 59 L. R. A. 478, 89 Am. St. Rep. 828, 64 N. E. 442; Atkinson v. John E. Doherty & Co. 121 Mich. 372, 46 L. R. A. 219, 80 Am. St. Rep. 507, 80 N. W. 285. Cobb, J., delivered the opinion of the court: 1-12. The petition really contains two counts, one for a libel, and the other for a violation of the plaintiff's right of privacy. There was no special demurrer raising the objection that the counts were not properly arranged, as there was in Cooper v. Portner Brewing Co. 112 Ga. 894, 38 S. E. 91; and hence the petition is to be dealt with in relation to its substance, without reference to its form. We will first deal with the general demurrer to the second count, which claimed damages on account of an alleged violation of the plaintiff's right of privacy. The question therefore to be determined is, whether an individual has a right of privacy which he can enforce, and which the courts will been inflicted on the plaintiff. In such a case, "although there be no precedent, the common law will judge according to the law of nature and the public good." Where the case is new in principle, the courts have no authority to give a remedy, no matter how great the grievance; but where the case is only new in instance, and the sole question is upon the application of a recognized principle to a new case, “it will be just as competent to courts of justice to apply the principle to any case that may arise two centuries hence as it was two centuries ago." Broom's Legal Maxims, 8th ed. 193. This results from the application of the maxim, Ubi jus ibi remedium, which finds expression in our Code, where it is declared that "for every right there shall be a remedy, and every court having jurisdiction of the one may, if necessary, frame the other." Civil Code 1895, § 4929. The individual surrenders to society many rights and privileges which he would be free to exercise in a state of nature, in exchange for the benefits which he receives as a member of society. But he is not presumed to surrender all those rights, and the public has no more right, without his consent, to invade the domain of those rights which it is necessarily to be presumed he has reserved, than he has to violate the valid regulations of the organized government ⚫ under which he lives. The right of privacy has its foundation in the instincts of nature. It is recognized intuitively, consciousness being the witness that can be called to establish its existence. Any person whose intellect is in a normal condition recognizes at once that, as to each individual member of society, there are matters private, and as go through life in possession of all of his members, and his body unmarred; nor is his right to personal liberty fully accorded by merely allowing him to remain out of jail, or free from other physical restraints. The liberty which he derives from natural law, and which is recognized by municipal law, embraces far more than freedom from phys ical restraint. The term "liberty" is not to be so dwarfed, "but is deemed to embrace 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, understood in this country, means the right. not only of freedom from servitude, imprisonment, or restraint, but the right of one to use his 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 avocation." See Brannon, Fourteenth Amendment, 111. Liberty includes the right to live as one will, so long as that will does not interfere with the rights of another, or of the public. One may desire to live a life of seclusion; another may desire to live a life of publicity; still another may wish to live a life of privacy as to certain matters, and of publicity as to others. One may wish to live a life of toil, where his work is of a nature that keeps him constantly before the public gaze, while another may wish to live a life of research and contemplation, only moving before the public at such times and under such circumstances as may be necessary to his actual existence. Each is entitled to a liberty of choice as to his manner of life, and neither an individual nor the public has a right to arbitrarily take away from him this there are matters public so far as the indi- | fully accorded by allowing an individual to vidual is concerned. Each individual as instinctively resents any encroachment by the public upon his rights which are of a private nature as he does the withdrawal of those of his rights which are of a public nature. A right of privacy in matters purely private is therefore derived from natural law. This idea is embraced in the Roman's conception of justice, which "was not simply the external legality of acts, but the accord of external acts with the precepts of the law, prompted by internal impulse and free volition." Mackeldey's Roman Law, by Dropsie, § 123. It may be said to arise out of those laws sometimes characterized as "immutable," because they are natural, and so just at all times and in all places that no authority can either change or abolish them." 1 Domat's Civil Law, by Strahan, Cushing's ed. p. 49. It is one of those rights referred to by some law writers as "absolute," "such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy, whether out of society or in it." 1 Bl. Com. 123. Among the absolute rights referred to by the commentator just cited is the right of personal security and the right of personal liberty. In the first is embraced a person's right to a “legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation;" and in the second is embraced "the power of locomotion, of changing situation, or moving one's person to whatsoever place one's own inclination may direct, without imprisonment or restraint, unless by due course of law." 1 Bl. Com. 129, 134. While neither Sir William Blackstone nor any of the other writers on the principles of the common law have referred in terms to the right of privacy, the illustrations giv-liberty. See, in this connection, Cyc. Law en by them as to what would be a violation Diet. (Shumaker & Longsdorf), and Bouof the absolute rights of individuals are not vier, Law Dict., title Liberty. All will adto be taken as exhaustive, but the language mit that the individual who desires to live should be allowed to include any instance a life of seclusion cannot be compelled, of a violation of such rights which is clear- against his consent, to exhibit his person in ly within the true meaning and intent of the any public place, unless such exhibition is words used to declare the principle. When demanded by the law of the land. He may the law guarantees to one the right to the be required to come from his place of seenjoyment of his life, it gives to him some-clusion to perform public duties,—to serve thing more than the mere right to breathe and exist. While, of course, the most flagrant violation of this right would be deprivation of life, yet life itself may be spared, and the enjoyment of life entirely destroyed. An individual has a right to enjoy life in any way that may be most agreeable and pleasant to him, according to his temperament and nature, provided that in such enjoyment he does not invade the rights of his neighbor, or violate public law or policy. The right of personal security is not as a juror, and to testify as a witness, and the like; but, when the public duty is once performed, if he exercises his liberty to go again into seclusion, no one can deny him the right. One who desires to live a life of partial seclusion has a right to choose the times, places, and manner in which and at which he will submit himself to the public gaze. Subject to the limitation above referred to, the body of a person cannot be put on exhibition at any time or at any place without his consent. The right of |