Munster v. Lamb. QUEEN'S BENCE DIVISION. (Sittings in Banc, befo' c Wit. JUSTICE MiATHLW and MR. JusTIcz A. L. SmTiH.) Judgment was given in this case, whichwas argaed yesterday and fully reported. MaR. JusTicar MIATnEw delivered judgment in favour of Mr. Lamb, the defendant. This, he said, was an action- by 3r. Munster against Mr. Lamb, a Eolicitor, for de amatory expressions said to have been used by him while acting as advocate for a woman of the name of Hill against whom a criminal prosecution had been instituted by Mtr. Minster. The case was tried before Mr. Justice Wathin Williams, and at the conclusion of the evidence ror tlhe plaintiff he Fvas of opinion that there was no case which ought to Le submitted to the jury, and therefore he directed the plaintiff to he nonsuited. An application was made to set this nonsuit aside, and we have now to say whcther that application should be acceded to. The cir- cumstances which gave rise to the action were these: In Jnune, lSSl, a prosecution was instituted by BMr. Blunster against the wloman and her husband for burglary alleged to have been com-citted by them in his house. At the trial the man pleaded " Guilty; " the woman, his wife was acquitted. Shortly afterwards another prosecution was commrenced by Mr. -Manster against the woman, the charge against her baing that in IS7S she had, in order to facilitate the commission of a burglary in Mr. Munster's houF.o, administered to his servants narcotic drugs. The charge so made by M1r. -Munster came ou for hearing before the magistrates at Brighton on the 7th of June, and ulti- mately broke down on the evidence. On that omcasion an application wvas made on behalf of the prosecutor for a remand, in order that further evidence might be obtained. In opposing that application Mr. Lamb made use of eo- pressions, the subject of the 'rs't complaint in this action. Pointing out the dangers to which bis client would be ex- posed by au adjournment in order to procure further evi- dence against her, he said the prosecutor had already spirited away on some former occasion the sister of the accused person and had shut her up in a convent in order that she might be prevented from being a witness. This absard rcmark does not appear to have been called to the attention of the magistrates and was not in anv way noticed. It is unnecessary, however, to deal with this part of the case, as Mr. Waddy, in the course of his argument, virtually abandoned this causo of csmpIaint. It is verv quetionablo whether these words were defamatory per se, and if they were, they appeared to come within the instructions the advocate probabiyreceived from his client, and therefore they would be within the privilege of the advocata and so protected from action. The application for an adjournment, however, succeeded, and on the 17th the prisoner was brought up again, and on that occasion further evidence was offered in support of the chargo. A Miss Cartwright was called,asd it is only necessary to refer thus far to the evidence elicited from2her-that at the time of the supposed offence several young women were resident in the louse, though it is only fair to Mr. Munster to say, further, that one witness proved that at the time he was not resident in the house. Mies Cartwright gave farther evidenco in support of the suggestion that the prisoner had administered some narcotic dreg to her and the other servauts in the house on the occasion in question. On the whole of the evidence, however, it was then sub- mitted, on behalf of the prosecutor, to the magistrates that the evidence was sufficient to justify them in detain- ing the prisoner further. It was tho duty of Mr. Lamb to resist the application on the part of the prosecutor, and in the course o? his address to the magistrates on that occa- sion he made use of the expressions which were the main subject of complaint. He thought it was his duty to acco.Dt for the Buppo-ed prosenca of some narcotic in the house, and he suggested that it might have been brought into the noose by Mlr. Manster himself, with the intention Df using it for some immoral and criminal purpose, and these words were the real ground of action. Tho learned counsel for the defendant, who argued the case with great ability and propriety, did not attempt to justify or excise the expressions used by the defendant. It wa3 impossible to do so. The im?ratatiou cast upon Mr. Monster was altogether unfounwed and absurd. The laugeage of the] defendant, if used byrau advocate in a Superior Court, wouldmosteertainlyhaveledtoa sharp reprimand from the presiding Judge. The magistrates to whom the obser- vations of the defendant were addesed do not appearto have noticed them, probably because they thought them so nureasonable as not to deserve attention. The counsol for the defendant, lvhile not disputing the impropriety of the aefendant's conduet, at the same time insisted that his words were protected from being made thesubject of action by-reason of his privilege as au advocate He argued that the language of an advocate, however unbecoming or ill- =dvised, is not actionable so long as he speaks in good faith sad in the diseharge of what he honestly considers to be )is duty towards his client. He relied upon the decisions Irom " Rex v. Slinner," before Lord Mans6eld, dowx to ' Dawkins v. Lord Rokeby," in which the privilege of the idvccate is treated as similar to that of the Judge aud the wituess, and is referred to the same principle-namely, that it is indispensable, in the interests of suitors, that those who take part in a suit should be free and indepen- tent in the discharge of their duty; and that to that end their conduct should not be subject to be brought in ques- tiou before a jury upon a subsequent trial. As against this riew, it was r"cied by lr. Waddy that the privilege of sounsel is lessthian that of a Judge or a witness. He con- teudeI that the duty of counsel was to state to the Court ivith critical accuracy what was contained in his instrue- 'ions, and to ccnmment fairly and reasonably upon the evidence given in the case, and that for any departure from the line of his duty (of which it was saia a jury are the proper judges) the counsel, he insisted, ounht to bee liable to an action. In sapport of this Tiew hYr. Waddy mainly relied upon the case of "F lint T. Tike " (4, " B. iud C.") and" -iodgaso v. Scarlett" (1, "B. and Alder- on"), and in a passage in the judgment of Lord Coleridge in the recent case of " Seaman- r. letherclift." But it seems to me that there is no authority for Mr. 'Waddy's positien. MIr. Wfaddy pointed out-wfhat is greatly to the redit of the Bar of England-that in no case ia which the onduct of a barrister had been called iin question in an actiOn had there been any difficulty in showing that the. laeguage of the advocate had been relevant to the matter In baud in the strictest sense. But ho failed to satisfy me that in a case on which this strict relevancy could not be proved the advocate would not be protected. The trivilemo is not needed when the advocate is in the right. ?mtat5 be inconvenient to individuals that advocates ,hould heat libetty---subject only to animadversion or uanshment from the presiding Judge-to abuse this privi- l5ege of free speech. But it would be aL far greater incon- ?enience to uitor if advocates were embarrassed and enfeenbled inthtir endeavous to perform their duty by the fear of subsequent litigation. This conuequence would follow-that ue advocates would be as indepeadent as those whom circumstances rendered it useless to sue in actins.The assge in"1 Seaman. v. N~ethorclift," iiponk wshich. Mr. Wddy relied, was not, as it seems to me, in- teaded to qualify the statement of the law contained in the arlier judgments relied upon for the defendant. All that was intended to be laid down was this- that for defamatory tatemNie mad by au adocate outido his office as adva- cate, and with no reference to the sabject beforo the Court,' and which therefore must necessarily be irrelevant and made in bad faith, counsel might be proceeded against in an actionL In this Case the expressions complained of seem tome to haye been within the line indicated by the aathorities as the boundaries of the advocate's privilege; and I think therefore that the ruling of the learned Judge was right, and that this application must be dismissd. MAn. JusnTcs A. L. S=riH concurred. Mr. WADDY asked that, as the question raised was importantandina certain senie novel, time might be given to decide as to axn apeal. Mlr. Gorns, for the defend ant, did not oppose this, and The CoUnT at once assented to it. muSTEP. V T.LAh.