side, and that judgment will be entered for the appellant in the action for 20s., without costs.

Warrington, L.J.: The defendant was employed by the plaintiff in a confidential capacity as an accountant, and it is not disputed that it was his duty to take reasonable care that the plaintiff's documents should not be disclosed to other persons. In a letter of instructions written to the defendant the plaintiff inserted libelous statements in reference to two persons named Lowe and Comins. The jury have found that the defendant neglected the duty above mentioned, and in consequence the contents of the letter became known to one Hirst, and through him to Lowe and Comins. They brought [532] actions for libel against the plaintiff, they succeeded in displacing a plea of privilege by proving express malice, and they recovered judgments in the one case for 500l. and in the other for 350l., with costs. The plaintiff seeks to recover the loss and expense which he has thus incurred as damages for the defendant's breach of duty, above referred to. The case was tried before Darling, J., and a special jury. The jury answered in the affirmative the following questions, namely: (1) Was it the duty of the defendant to keep secret the letter of May 4, written by the plaintiff to the defendant? (2) Did the defendant neglect his duty in regard to the said letter so that the contents thereof were disclosed or came to the knowledge of Mr. Hirst? (3) Were the actions for libel brought by Lowe and Comins against the plaintiff, and the damages recovered by them, the natural consequence of the proved negligence of the defendant? And they awarded the plaintiff 650l. damages. The learned judge, however, entered judgment for the defendant on two grounds: (1) That there could not in law be an implied contract to keep secret a libelous letter such as that in question; and (2) that in any case the plaintiff could not recover as damages the loss and expense occasioned by his own wrongdoing. The plaintiff appeals, and the defendant has a cross motion asking for a new trial on the ground of misdirection and excessive damages. The publication relied on in the libel actions was the writing of the letter to the defendant. The cause of action, therefore, was complete before any default on the defendant's part had occurred.

The first question is, Was the defendant under an implied obligation to take reasonable care that the contents of the letter should not be disclosed? The letter was clearly one of the class of documents to which his general obligation as confidential agent extended, and I think it is for him to make out that its nature as a libelous document excludes it from the class. The defendant contends in the first place that the letter was a criminal libel and that it would be contrary to public policy to treat as valid and binding even an express obligation to conceal a crime and a fortiori that the law would not imply such an obligation. There is no direct authority on the point, [533] and, as will be seen, I do not think the question arises, and I prefer to express no opinion upon it except that, if the document in question revealed a contemplated crime, the commission of which its disclosure might prevent, I think there would be a duty owing to the public which would override any private obligation. In the present case, however, we are not, in my opinion, entitled to assume that the letter was a criminal libel. It is not every libel which is criminal, and the question whether a particular libel is so or not is one for a jury. There has here been no prosecution and of course no conviction. The libel was a private wrong towards the persons libeled, and, in my opinion, for the purposes of this case it must be treated as such, and not as a crime.

Is there, then, anything in law to render invalid an obligation not to disclose a document which is libelous, or which contains evidence of a private wrong, or to exclude such a document from the implied obligation as to secrecy cast upon a confidential agent? Reliance was placed upon the judgment of Wood, V. C., in Gartside v. Outram (1856) 26 L. J. Ch. N. S. 113. In that case the plaintiffs sued for an injunction restraining the defendant, who had been in their employment, from disclosing materials obtained by him in the course of his employment showing that they had conducted their business in a fraudulent manner. They denied the fraud but at the same time alleged that they had been sued by certain persons who had made use of information supplied by the defendant and had recovered damages, and they further alleged that the defendant was threatening and intending to communicate similar evidence to other persons. The defendant by his answer specifically alleged the fraud which he

said was evidenced by the materials in question, and he sought to interrogate the plaintiffs with a view to obtaining an admission of the fraud. The Vice Chancellor allowed the interrogatories, holding that, if the defendant should establish the charge made against the plaintiffs, he would defeat the plaintiffs' claim in the suit. The Vice Chancellor, in the course of his judgment, said this, Id. 115: "The question is, whether, supposing the case so averred by the answer, definite and [534] precise in all particulars, to be proved or admitted, the plaintiffs are entitled to say there shall be an injunction to restrain the defendant from making a disclosure which may enable others to recover, as Messrs. Rathbone have done? I hold that it is a good defense if those facts are made out." It must, however, be remembered that in that case the plaintiffs were seeking the aid of the extraordinary jurisdiction of the Court of Chancery in enforeing specific performance of the negative obligation of the defendant not to disclose his master's secrets, and as is well known that jurisdiction was not necessarily exercised because the plaintiffmight have a right of action at law for breach of contract. Such a plaintiff might be left to his remedy at law if for any reason the Court of Chancery should be of opinion that the extraordinary jurisdiction should not be exercised in his favor. Such was the case where the plaintiff did not, as was said, "come with clean hands." In my opinion the judgment of the Vice Chancellor may well be read, not as a decision against the alleged legal obligation, but merely as an expression of the opinion of the Vice Chancellor against the exercise of the equitable jurisdiction. But even if the judgment is of the wider application, it does not cover such a case as the present. The fraud there alleged was a systematic fraud pursued by the plaintiffs in the course of their business, and the disclosure of the evidence in the defendant's possession would tend to prevent such frauds in the future. I doubt whether the Vice Chancellor would have come to the same conclusion where, as in the present case, the question relates to a single document, the writing and publication of which is no doubt a cause of action, but the disclosure of which serves no useful purpose, except to enable the person libeled to recover damages for a libel, the existence of which, but for the defendant's neglect, might never have been known to anyone.

No other authority in point has been cited to us, but there are expressions in the judgment of Lindley, L.J., in Saunders v. Seyd and Kelly's Credit Index Co. (1896) 75 L. T. N. S. 193, which show that it did not occur to him that there was any objection in law to an obligation [535] not to disclose a libelous document. Such a principle, if it existed, would be of very widespread application. A man discloses to his confidential agent that he has committed a trespass to land or goods, and the agent might with impunity communicate this to the persons concerned with disastrous results to his employer. Indeed I can see no distinction in this respect between cases of contract and cases of tort. Unless there be such a distinction, the disclosure by the agent of evidence of a breach of contract on his employer's part would be no breach of his duty to his employer. On the whole I can see no reason founded on public policy or any other ground why an agent should be at liberty to disclose evidence of a private wrong committed by his principal, and I come to the conclusion that the implied obligation of the defendant in reference to the plaintiff's documents in general extended to the letter of May 4, 1915.

There remains, however, the question whether the plaintiff is entitled to recover as damages for breach of the defendant's obligation a sum of money which he was legally liable to pay independently of any act or default on the part of the defendant. In the present case no other damage is suggested, and if those awarded by the jury are not recoverable, then, though there would be a technical breach of the defendant's obligation, the damages would be nominal. If the plaintiff is right, the obligation not to disclose is equivalent to an obligation to indemnify the plaintiff against the liability to pay the amount recovered for damages and costs in an action brought as a consequence of the disclosure. The damages and costs in question are payable by reason of the plaintiff's own wrongdoing, and were legally recoverable from him independently of the defendant's breach of his obligation. Moreover the writing and publication of the libel cannot be treated as a merely negligent act causing injury to other persons, inasmuch as the jury have found that the plaintiff was actuated by express malice. This consideration excludes the present case from the principle of such cases

as Trinder, Anderson & Co. v. Thames and Mersey Marine Insurance Co. [1898] 2 Q. B. 114, 8 Asp. Mar. L. Cas. 373, 3 Com. Cas. 123, 67 L. J. Q. B. N. S. 666, 78 L. T. N. S. 485, 14 Times L. R. 386, 46 Week. Rep. 561, and many others [536] in which insured persons have been held entitled to recover although the loss in question arose from the negligence of the assured or his servants. Again it may well be that if a servant by his negligent act inflicts an injury on a third person who recovers damages therefor from the master, the latter may recover the amount from the servant in an action against him for breach of his duty. But in such a case the right of action against the master and his legal liability themselves result from the servant's negligent act, and but for that act would not have existed. This is not so in

the present case. I think the defendant's case may be rested on the broad ground that no "claim for indemnity can be maintained where the doer of the act knew at the time, or must be presumed to know, of circumstances which make the act either a private wrong or a public crime." Per Kennedy, J., in Burrows v. Rhodes [1899] 1 Q. B. 816, 833. In that case the plaintiff was held to be entitled to recover loss and expenses to which he had been put in connection with the Jameson raid from persons by whose representations he had been induced to join in the raid in the belief that it was lawful. It was the fact of the plaintiff having this belief that in the opinion of the court entitled him to relief, and but for it he would have had no cause of action. In my judgment then the damages awarded by the jury were not legally recoverable. No other special damage was alleged, and therefore the damages must be nominal.

The result is that, while on technical grounds the plaintiff was entitled to have judgment entered for him for nominal damages, and the judgment actually entered must be varied accordingly, in substance his action was rightly held to have failed. Under these circumstances the question arises, What ought to be done in reference to costs? The case was tried with a jury, and accordingly the costs must follow the event, unless the judge by whom it was tried or the court shall for good cause otherwise order. The judge had not to consider the question because he gave judgment for the defendant and the costs followed. We, however, have to say first whether there is good cause for saying