him, and in which he is interested, have been and are much depreciated and lessened in value, and divers persons have believed, and do believe, that he has little or no right to the shares, and that the mine cannot be lawfully worked or used for his benefit, and that he hath been hindered and prevented from selling or disposing of his said shares in the said mine, and from working and using the same in so ample and beneficial a manner as he otherwise would have done. And we are of opinion that this is not such an allegation of special damage as the authorities above referred to require, where the action is not founded on the words spoken or written, but upon the special damage sustained. It has been argued in support of the present action, that it is not so much an action for slander of title, as an action for a libel on the plaintiff in the course of his business, and in the way of gaining his livelihood, and that such an action is strictly and properly an action for defamation, and so classed and held by all the authorities. But we think it sufficient to advert to the declaration to be convinced that the publication complained of was really and strictly a slander of the plaintiff's title to his shares, and nothing else. The bill in Chancery, out of which the publication arose, is filed by Tollervey, who disputed the plaintiff's right to the whole of the shares, and claimed in himself a right to part of the same, and prayed that he might be declared to be entitled to some of them; and the only mention made as to the working of the mines, was with reference to the appointment of a receiver to the profits thereof. And we think it would be doing violence to the natural meaning of the terms of the publication, if we were to hold it to be published of the plaintiff in the course of his business, or occupation, or mode of acquiring his livelihood, and not as referring to the disputed title of the shares of the mine. It has been urged, secondly, that however necessary it may be, according to the ancient authorities, to allege some particular damage in cases of unwritten slander of title, the case of written slander stands on different grounds, and that an action may be maintained without an allegation of damage actually sustained, if the plaintiff's right be impeached by a written publication, which of itself, it is contended, affords presumption of injury to the plaintiff. No authority whatever has been cited in support of this distinction. And we are of opinion that the necessity for an allegation of actual damage in the case of slander of title, cannot depend upon the medium through which that slander is conveyed, that is, whether it be through words, or writing, or print, but that it rests on the nature of the action itself, namely, that it is an action for special damage actually sustained, and not an action for slander. The circumstance of the slander of title being conveyed in a letter or other publication, appears to us to make no other difference than that it is more widely and permanently disseminated, and the damages in consequence more likely to be serious than where the slander of title is by words only, but that it makes no difference whatever in the legal ground of action. For these reasons, we are of opinion that the action is not maintainable, and that the judgment must be arrested; and, consequently, it becomes unnecessary to inquire whether the innuendo laid in the declaration is more large than it ought to have been. We therefore make the rule for arresting the judgment absolute. Rule absolute. Nov. 8. Certain titledeeds were entrusted to an attorney by his client, for the purpose of raising a loan of money upon mortgage the attorney disclosed a defect which he discovered in the title, to one of his clients, who might be benefitted by the disclosure, and who thereupon employed the attorney to take proceedings to recover the estate :-Held, that the attor ney was guilty of a gross breach of duty, and that he might be sued for the damages client which the c ney TAYLOR V. BLACKLOW. THE declaration stated, for that whereas, before and at the several times hereinafter mentioned, the defendant was an attorney, to wit, an attorof the Court of Common Pleas at Westminster; and the plaintiff then claimed to be lawfully entitled to, and interested in, a certain estate, to wit, in certain messuages, buildings, lands, tenements, and premises, with the appurtenances, in the county of Kent; and before and at the time of the committing of the grievances by the defendant as hereinafter mentioned, was desirous to borrow and obtain an advance of money, to wit, the sum of 40001., by way of mortgage and security upon the said estate and premises, whereof the defendant, before and at the time of the committing of the grievance by him committed, as hereinafter stated, had notice; and thereupon heretofore, to wit, on the 22nd day of March, in the year of our Lord 1833, the defendant, so being such attorney as aforesaid, represented to the plaintiff that he had a client who would advance the said sum of 40007., on sufficient security, and at a moderate rate of interest, to wit, at the rate of 41. per cent. per annum for interest on the same; and the plaintiff, at the request of the defendant, retained and employed the defendant as such attorney to use due endeavours to obtain and procure the said sum of 4000l. on such mortgage for the plaintiff, for reasonable reward to the defendant in that behalf; and the plaintiff, at the request of the defendant, then delivered to the defendant, as such attorney, and in pursuance of the said retainer, divers, to wit, six, abstracts of, and relating to, the title of the plaintiff of, in, and to the said estate and premises, and certain other documents also relating to the same, to wit, a statement of the number of acres of which the said estate consisted, and the names of the tenants and occupiers of the same; and thereupon, and by means of the premises, the defendant afterwards, and before the committing of the grievance by the defendant as hereinafter mentioned, to wit, on the day and year aforesaid, as such attorney of and for the now plaintiff as aforesaid, discovered and ascertained that there was a certain defect in, and objection to, the legal right and title of the plaintiff to the said estate and premises, to wit, that in two of the titledeeds of and relating to the said estate and premises, a part of the said estate and premises, to wit, sixty acres thereof, and certain messuages, buildings, and improvements thereon, had not been sufficiently conveyed to or for the use or benefit of the plaintiff, and that by reason and on account thereof, a certain person, to wit, John Henry Taylor, the brother of the plaintiff, then had, in point of law, a legal title to such part of the said estate and premises, and to recover the possession of the same, although, in justice and equity, the beneficial interest in the whole of the said estate and premises then belonged to the now plaintiff'; and by reason of the premises, and under and by virtue of the said retainer and employment, it then became and was the duty of the defendant not voluntarily or unnecessarily to divulge or communicate the said defect in and objection to the legal right and title of the plaintiff to the said estate and premises to the said J. H. Taylor, or to any other person, and not to instigate, or cause or procure to be commenced or prosecuted, any action or proceeding for the recovery of the said estate and premises, or any part thereof, from the now plaintiff, for or by reason or on account of such discovery of the defendant by the means aforesaid; nevertheless, the defendant, so being such attorney as aforesaid, but not regarding his duty as such attorney, nor his duty in the premises under and by virtue of his said retainer and employment, but contriving, and craftily and subtilely intending to injure and annoy the plaintiff, and to cause and procure a great part of the said estate and premises, to wit, the said sixty acres thereof, and the said messuages, buildings, and improvements thereon, to be recovered from him, by unjust, vexatious, and improper proceedings, heretofore, to wit, on the day and year aforesaid, dishonorably, wrongfully, and unjustly, and for the sake of fees and unjust reward in that behalf, in violation of his duty as such attorney, and contrary to his said duty in the premises, and in violation of good faith, voluntarily and unnecessarily divulged and communicated the said defect in and objection to the legal right and title of the plaintiff to the said estate and premises to the said J. H. Taylor, and then wrongfully, maliciously, dishonorably, and oppressively, contriving and intending as aforesaid, heretofore, to wit, on the day and year aforesaid, instigated and caused and procured divers, to wit, four actions of ejectment respectively, on the demise of the said J. H. Taylor, to be commenced against divers, to wit, twelve tenants of the now plaintiff of certain parts of the said estate and premises of the plaintiff; and the said now plaintiff having, as landlord, duly appeared and defended the said actions of ejectment, the now defendant prosecuted the same, and also wrongfully, maliciously, unjustly, and oppressively caused and procured a certain other action, by and in the name of the said J. H. Taylor, against the now plaintiff, to be commenced and prosecuted for a certain pretended cause of action, to wit, the cutting down and converting certain timber, before then growing on the said estate and premises of the plaintiff; and the now defendant, further contriving and intending as aforesaid, also then wrongfully and maliciously, unjustly and oppressively, instigated and caused and procured to be commenced, in the name of the said J. H. Taylor, against the now plaintiff, divers, to wit, four other actions, for the recovery of certain sums of money claimed to be due from the now plaintiff, which, but for such instigation and causing and procuring of the now defendant would not have been so commenced or prosecuted; and the defendant, further contriving as aforesaid, then falsely and maliciously instigated and persuaded, and caused and procured the said J. H. Taylor to commence and prosecute against the now plaintiff a certain untenable suit in the Court of Exchequer for setting aside the conveyance to the now plaintiff of his said estate of and in the said premises, and which was afterwards, to wit, on the 9th day of July, 1834, according to equity and justice, dismissed, with costs to be paid by the said J. H. Taylor; and the now plaintiff further saith, that in order to obtain relief in the premises, he was heretofore, to wit, in Hilary Term, in the fourth year of the reign of our lord the now king, forced and obliged to file, and did file and prosecute his certain bill of complaint against the said J. H. Taylor in the Court of Exchequer, for relief in the premises, and in order to obtain an injunction against the prosecution of the said actions of ejectment, and was also then forced and obliged to apply to the said Court of Exchequer for relief Com. Pleas. TAYLOR V. BLACKLOW, Com. Pleas. TAYLOR V. BLACKLOW. against the said now defendant; by means of which said breach of duty, and of the said false, deceptive, fraudulent, and malicious conduct of the defendant in the premises, the plaintiff hath been forced and obliged to incur, and hath incurred, great trouble of mind and body, and great expense of his monies, to wit, to the amount of 20007., in defending and resisting the said unjust and vexatious proceedings, and in obtaining and enforcing, and in endeavouring to obtain and enforce, by due and lawful ways and means, relief against the same and other unlawful, unjust, and oppressive proceedings of the now defendant in the premises; and by means and in consequence of the said J. H. Taylor having become insolvent and unable to pay the costs of the said vexatious proceedings, so instigated and caused and procured, by the now defendant to be instituted and prosecuted in his name as aforesaid, the now plaintiff hath been and is unable to recover or obtain payment or satisfaction of or from the said J. H. Taylor of the said costs, and he is wholly unable to pay or satisfy the same; and the now plaintiff hath been and is, by means of the said several malicious and unjust, vexatious and improper conduct of the defendant, greatly harassed, oppressed, vexed, and impoverished, and otherwise greatly injured; and also, by means of the premises, the plaintiff was hindered and prevented from raising and procuring the said money, or other money, on mortgage of the said estate and premises, for a long time, to wit, from thence until the 20th day of January, in the year of our Lord 1836, and was then, by reason of the premises, forced and obliged to raise and procure, on mortgage and security of the said estate and premises, a much larger sum of money than the said sum of 40007., to wit, the sum of 60007., and at a greater rate of interest than at and after such rate of 41. per cent. per annum, to wit, at and after the rate of 41. 10s. per cent. per annum, for each and every 1007. thereof; to the damage of the plaintiff of 20007.; and thereupon he brings his suit, &c. Plea. And for a further plea in this behalf the defendant saith, that before and at the time when he represented to the plaintiff that he the defendant had a client who would advance the said sum of 40007. on sufficient security and at interest, and before and at the time when the plaintiff delivered to him the defendant the said abstracts and other documents relating to the said estate and premises, and before and at the time when the said defendant discovered and ascertained that there was a certain defect in and objection to the legal right and title of the plaintiff to the said estate and premises, and before and at the time when the defendant divulged and communicated the said defect in and objection to the legal right and title of the plaintiff to the said estate and premises to the said J. H. Taylor, he, the defendant, was the attorney and solicitor of and for the said J. H. Taylor, and had been and was retained and employed by him, as such attorney and solicitor generally in relation to his affairs, and whereof the plaintiff had notice; and thereupon it became and was the duty of the defendant, as such attorney and solicitor, of and for the said J. H. Taylor, to divulge and communicate the said defect in, and objection to, the legal right and title of the plaintiff to the said estate and premises, to the said J. H. Taylor; and he did on that account, and without malice or any violation of good faith, at the said time, when, &c., divulge and communicate the said defect in, and objection to, the legal right and title of the plaintiff to the said estate and premises, to the said J. H. Taylor, with a view, and in order that he might claim and recover the said estate and premises from the plaintiff, if lawfully entitled thereto, as he then appeared and was believed by the defendant to be; and that, thereupon, the said J. H. Taylor, did retain and employ the said defendant as such attorney, to take due and proper proceedings, to try and investigate the said right and claim of the said J. H. Taylor, and to recover the said estate and premises for him, and to bring and prosecute the said actions and suits in the declaration mentioned in that behalf; and this the defendant is ready to verify, &c. Demurrer.-The causes assigned were, that although the defendant confessed and admitted that he had been and was retained and employed by the plaintiff to act for him as his attorney in the premises, and that under and by virtue of that retainer and employment, the said defendant discovered and ascer tained the said defect in and objection to the legal right and title of the plaintiff to the said estate and premises; but that, in justice and equity, the beneficial interest in the whole of the said estate and premises, then belonged to the plaintiff; and although the defendant had confessed and admitted that it was his duty, under and by virtue of the said retainer and employment, not voluntarily or unnecessarily to divulge or communicate the said defect and objection to the said J. H. Taylor, or to any other person, nor to instigate, or cause, or procure, any action or proceeding for the recovery of the said estate, or any part thereof; yet the defendant had attempted to defend and justify his said illegal conduct, upon and under colour of a wholly untenable ground and pretence; and also, for that although the said plea was pleaded in bar to the whole declaration, yet it did not state or shew any defence, or legal or sufficient justification or excuse, for the said statement and cause of action against the said defendant, for and in respect of his having so wrongfully, maliciously, and dishonourably instigated, and caused and procured the said actions of ejectment to be commenced and prosecuted, and the said other action to be commenced and prosecuted for the said pretended cause of action for cutting down timber, or for having procured to be commenced the said other four actions, and causing the said J. H. Taylor to commence and prosecute against the plaintiff, the said untenable suit in the Exchequer; and also, for that the said plea was, in other respects, uncertain, informal, and insufficient. Joinder. Kelly, for the plaintiff.-The question is, whether an action can be maintained by a client against his attorney for damages occasioned by a gross breach of duty. In Com. Dig. tit. Action on the Case for a Deceit (A. 5), it is said that an action lies, "if a man being intrusted in his profession deceive him who intrusted him: as if a man retained of counsel become afterwards of counsel with the other party in the same cause; or if he discover the evidence or secrets of the cause." It is evident that the circumstances disclosed in the declaration shew that the attorney was guilty of a breach of professional duty, and it is one of the most inflexible duties of an attorney that he should keep his client's secrets. In Earl of Cholmondeley v. Lord Clinton (a), Lord Eldon declared that it was the unanimous opinion of all the judges, that an attorney cannot give up his client and act for the opposite party in any suits between them. The plaintiff alleges that he sustained special damage by (a) 19 Vesey, 261. Com. Pleas. TAYLOR υ. BLACKLOW. |