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the costs shall not follow the event, [537] namely, the judgment for nominal damages; and, secondly, if there is good cause, then what order should be made.

In my opinion, in an action founded on contract where, as in the present case, the plaintiff claims a large sum, and in the result, though he establishes his contract and proves the breach, recovers only nominal damages, there is good ground for a special order as to costs. If there is good cause then the court has discretion as to the mode in which the costs shall be dealt with. See Harris v. Petherick (1879) 4 Q. B. D. 611, 48 L. J. Q. B. N. S. 521, 41 L. T. N. S. 146. And I think it ought to be exercised in the present case by depriving the plaintiff of his costs. I have doubted whether we ought not to go further and order him to pay the defendant's costs, but I have come to the conclusion that the negligent conduct of the defendant or of his partner has really brought about the action, and he cannot complain if he has to bear his own costs. The appeal involves an alteration of the judgment to some extent in the appellant's favor, but I think the proper course is to give no costs.

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I agree that the cross appeal fails and must be dismissed, without costs.

Scrutton, L.J.: Mr. Weld-Blundell is an elderly gentleman, who has never appreciated that "the tongue is an unruly member," and has not been taught by verdicts in libel actions to restrain his tongue. He is also engaged in a number of not very successful speculations, and on May 4, 1915, he instructed an accountant, one Stephens, who had acted for him before and was therefore acquainted with his peculiarities, to investigate the affairs of a company managed by one Hirst, which affairs he suspected were not in order. In the course of his letter, he said that Hirst's predecessor "Lowe, an ingenious thief, with the help of of the rest of the gang, B., H. A., and C. managed by just the same maneuvers and pretexts to get two or three thousands." Stephens accepted the employment for reward, and sent his partner to call on Hirst to make inquiries about the company. The partner, by what appears to me quite inexcusable carelessness, dropped or left [538] the letter in Hirst's room. Hirst conceived himself to be justified in reading a private letter

obviously not meant for him, and passed it on to Lowe and Comins, who immediately brought actions against Mr. Weld-Blundell for libel, the publication alleged being the publication to Stephens. Mr. Weld-Blundell not unnaturally wrote an indignant letter to Stephens. One would rather have expected a man through whose partner's carelessness such a result had happened to overlook the indignation, and undertake responsibility for the actions which his carelessness had brought about. But Mr. Stephens took advantage of the terms of Mr. Weld-Blundell's letter to refuse to take any responsibility. Mr. Weld-Blundell in consequence felt himself unable to settle the actions on terms offered and went to trial. The judge found the occasion of publication to Stephens privileged, but the jury found it was malicious, and assessed heavy damages, which were reduced by the Court of Appeal. In all Mr. Weld-Blundell had to pay some 1,6007. He then sued Stephens to recover this sum, as damages for Stephens's breach of his contract to use reasonable care to keep his employer's documents and business secret. The jury found that the employment was such that there was an obligation to keep its subject-matter secret, and assessed damages 6501. The judge, on the application of the defendant, entered judgment for him on the ground that the plaintiff's loss followed from his own wrongful act in writing a libel. Mr. Weld-Blundell now appeals and asks for judgment according to the findings of the jury. The defendant cross appeals for a new trial on the ground of excessive damages, verdict against the weight of evidence, and misdirections.

In giving judgment for the defendant, Darling, J., after reviewing the authorities, which he holds, I think rightly, do not directly decide the point argued before him, comes to the conclusion that the law "does not, and cannot, imply any such promise or term as that which the plaintiff alleges." The plaintiff's allegation was that there was an obligation on Stephens to use reasonable care to keep secret his client's documents and business, though the documents were libels, and their communication to him a tort. The defendant's [539] contention, the learned judge expresses in two ways: "The injury sustained by the defendant" ---which must mean the plaintiff, Weld-Blundell, as defendant in the action for libel-"is traceable to his own unlawful act, and

the maxim 'ex turpi causa non oritur actio' is said to apply;" and again: "Can one recover damages against another because he has had to make reparation for a wrongful act committed by himself? I think he cannot."

. I do not think it necessary in this case to consider whether a plaintiff who has committed an act punishable criminally can ever recover damages based on his liability for that criminal act; though I reserve liberty to consider whether the decision of Rowlatt, J., in Leslie v. Reliable, &c., Agency [1915] 1 K. B. 652, 84 L. J. K. B. N. S. 719, [1915] W. N. 58, 112 L. T. N. S. 947, 31 Times L. R. 182, is correct. I do not at present see that an agreement to take precautions to prevent a man committing a crime is in any way contrary to public policy, and if that agreement is broken, and its breach causes the principal to commit a crime without any mens rea, the crime in that case being the sending of a money lender's circular to a minor, it is very arguable that damages are recoverable. Kennedy, J., in his judgment in Burrows v. Rhodes [1899] 1 Q. B. 816, 827, 68 L. J. Q. B. N. S. 545, 63 J. P. 532, 48 Week. Rep. 13, 80 L. T. N. S. 591, 15 Times L. R. 286, one of the many careful and instructive judgments with which he enriched our law, in dealing with liability for criminal acts as a foundation for contribution or indemnity, was of opinion (1) that where the doer of the act knew it to be a criminal offense, he could not recover damages based on his liability for the crime; and he included in this a case where the actor knew all the material facts, but did not know they constituted a crime, for he was presumed to know the law; (2) that where the actor, though not knowing all the facts that made the act a legal offense, knew it was morally wrong, he could not make his act the basis of a claim; (3) that where the actor was induced to do the act by a fraudulent misrepresentation of its character which, if true, would have made the act legal, he could in an action of deceit recover damages for the liability imposed on him because he had done the act in question. This was the case in Burrows v. Rhodes, [540] where the action was allowed. In Colburn v. Patmore (1834) 1 Cromp. M. & R. 73, 149 Eng. Reprint, 99, 4 Tyrw. 677, 3 L. J. Exch. N. S. 317, Patmore was engaged to edit the Court Journal, and he published in it a libel, for which Colburn, the proprietor, was convicted on criminal

information. Colburn then sued Patmore for negligence in editing. The action failed on what seems to us now the absurd pleading point that it was not clearly alleged that the publication for which Colburn was fined was the same publication which constituted Patmore's negligence. But the point was taken that the plaintiff could not claim compensation based on the commission of a public wrong, i.e., crime. The court avoided deciding it by the pleading point referred to, but they, with the exception of Bolland, B., were obviously of opinion that "a person declared by the law to be guilty of a crime cannot be allowed to recover damages against another who has participated in its commission," and this, though the person punished was in fact ignorant of the criminal act, and was punished because he had acted by his servant. It is not clear that it is contrary to public policy to employ a servant to take precautions that you are not made criminally liable by acts of your servants, or why the servant should not be liable, if through his negligence you are made liable, not being knowingly party to the criminal act.

But in this case Mr. Weld-Blundell has not been convicted of criminal libel, nor do I think he could have been. As pointed out in Reg. v. Labouchere (1884) 12 Q. B. D. 320, 322, 53 L. J. Q. B. N. S. 362, 50 L. T. N. S. 177, 32 Week. Rep. 861, 12 Cox, C. C. 415, 48 J. P. 165, the criminality of libels depends on their tendency to disturb the King's peace, a quality illustrated by the libel held to be the proper subject of criminal proceedings in Reg. v. Adams (1888) 22 Q. B. D. 66, 58 L. J. Mag. Cas. N. S. 1, 59 L. T. N. S. 903, 16 Cox, C. C. 544, 53 J. P. 377. This quality appears entirely lacking in a private communication libeling a third person, from Mr. Weld-Blundell to his accountant, to be kept private by the latter. The case must, therefore, be considered on the basis that the plaintiff is claiming damages based on his having committed a tort, and having had to pay damages in consequence, and the breach of contract that he complains of is not that the defendant has not taken precautions to prevent him from committing the tort, but that the [541] de fendant, by his breach of contract to keep the communications confidential, has provided or made public the evidence, written by the plaintiff, which proves the case against him, and enables it to be brought. When in Colburn v. Patmore (1834) 1 Cromp.

M. & R. 73, 82, 149 Eng. Reprint, 999, Lord Lyndhurst asked Mr. Maule arguing: "Suppose that Colburn, instead of having an information filed against him, had been sued in an action for damages," counsel answered: "The correct principle is this, that in all cases where the act done is a public wrong, a party connected with the commission of that act cannot claim either indemnity or compensation." This apparently refers to libels which can be proceeded against both civilly and criminally, not to libels which are not crimes. Many of the wide general statements on this subject in the books need careful limitation. Thus Lord Mansfield in Holman v. Johnson (1775) Cowp. pt. 1, pp. 341, 343, 98 Eng. Reprint, 1120, says: "The principle of public policy is this, 'ex dolo malo non oritur actio.' No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted." But when the illegal act is a civil wrong, there are many cases where a plaintiff successfully founds his cause of action on an illegal act. An auctioneer sells property not belonging to him on the instructions of an apparent owner, not the true owner. The auctioneer is liable for the tort of conversion, but he can recover the damages he has to pay against his principal. Adamson v. Jarvis (1827) + Bing. 66, 73, 130 Eng. Reprint, 693, 5 L. J. C. P. 68, Best, Ch. J., says in that case that the doctrine of Merryweather v. Nixan (1799) 8 T. R. 186, 101 Eng. Reprint, 1337, 16 Revised Rep. 810, that there is no contribution between joint tort-feasors, is confined to the cases where the person seeking contribution is presumed to have known he was doing an unlawful act, and this view is approved by Lord Herschell, L.C., in Palmer v. Wick and Pulteneytown Steam Shipping Co. [1894] A. C. 318, 324, 6 Reports, 245, 71 L. T. N. S. 163, Best, Ch. J., pointed out the public danger of the contrary doctrine as applied to auctioneers, brokers, factors, and agents. [542] In Betts v. Gibbins (1834) 2 Ad. & El. 57, 111 Eng. Reprint, 22, 4 Nev. & M. 64, 4 L. J. K. B. N. S. 1, where all the cases up to that time are discussed, the distinction is made between acts obviously unlawful like breaches of the peace, or cases in which the conduct of the

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