Parties and Advocates. No action will lie against a barrister for defamatory words spoken as counsel in the course of any judicial proceeding with reference thereto, even though they were unnecessary to support the case of his client, and were uttered without any justification or excuse, and from personal ill-will or anger towards the plaintiff arising from some previously existing cause, and are irrelevant to every question of fact which is in issue before the tribunal. (Munster v. Lamb, 11 Q. B. D. 588; 52 L. J. Q. B. 726; 32 W. R. 243; 49 L. T. 252; 47 J. P. 805.) This decision gives to an advocate the same absolute immunity as is enjoyed by a judge of a superior Court. The previous cases had not gone so far. In Brook v. Sir Henry Montague, (1606) Cro. Jac. 90, the Court decided that "counsel in law retained hath a privilege to enforce anything which is informed him by his client, and to give it in evidence, being pertinent to the matter in question, and not to examine whether it be true or false; but it is at the peril of him who informs him." And the Court assumed in favour of counsel that his client had instructed him to say what he did. Thus, in Wood v. Gunston, Style, 462, Glyn, C.J., says: "It is the duty of a counsellor to speak for his client, and it shall be intended to be spoken according to his client's instructions." In Flint v. Pike, 4 B. & C. 473, Bayley, J., says: "The law presumes that he acts in discharge of his duty, and in pursuance of his instructions." In Butt, Q.C. v. Jackson, 10 Ir. L. R. 120, the Court expressly decided that instructions to counsel are not the test by which to try whether or not the line of duty has been passed. Hence, the words are still absolutely privileged, although counsel may have exceeded his instructions. (See also Hodgson v. Scarlett, 1 B. & Ald. 232; Holt, N. P. 621; Needham v. Dowling, 15 L. J. C. P. 9; R. pros. Armstrong, Q.C. v. Kiernan, 7 Cox, C. C. 6; 5 Ir. C. L. R. 171; and Taylor v. Swinton, (1824) 2 Shaw's Scotch App. Cas. 245.) But the decision of the Court of Appeal in Munster v. Lamb removes all limitations whatever on the absolute privilege of an advocate for all words uttered in the course of his duty. The rule is made so wide (as Brett, M.R., points out, 11 Q. B. D. 604) not to protect counsel who deliberately and maliciously slander others, but in order that innocent counsel who act bona fide may not be "unrighteously harassed with suits." O.L.S Q An attorney acting as an advocate in a County Court or a police court enjoys the same immunity as counsel. (Mackay v. Ford, 5 H. & N. 792; 29 L. J. Ex. 404; 6 Jur. N. S. 587; 8 W. R. 586; Munster v. Lamb, suprà.) So with a proctor in an ecclesiastical court. (Higginson v. Flaherty, 4 Ir. C. L. R. 125.) The party himself, because of his ignorance of the proper mode of conducting a case, is allowed even greater latitude. (Per Holroyd, J., in Hodgson v. Scarlett, 1 B. & Ald. 244.) Any observation made by one of the jury during the trial is equally privileged, provided it is pertinent to the inquiry. (R. v. Skinner, Lofft, 55.) And so is any presentment by a grand jury. (Little v. Pomeroy, Ir. R. 7 C. L. 50.) Illustrations. A woman was charged before a court of petty sessions with administering drugs to the inmates of the plaintiff's house in order to facilitate the commission of a burglary there. The plaintiff was the prosecutor, and the defendant, who was a solicitor, appeared for the defence of the woman. It was admitted that she had been at the plaintiff's house on the evening before the burglary; and there was some evidence, though very slight, that a narcotic drug had been administered to the inmates of the plaintiff's house on that evening. During the proceedings before the magistrates the defendant, acting as advocate for the woman, suggested that the plaintiff might be keeping drugs at his house for immoral or criminal purposes. There was no evidence called or tendered that the plaintiff kept any drugs in his house at all. Held, that no action would lie against the defendant for these words, as the occasion was absolutely privileged. Munster v. Lamb, 11 Q. B. D. 588; 52 L. J. Q. B. 726; 32 W. R. 243; 49 L. T. 252; 47 J. P. 805. A servant summoned his master before a court of conscience for a week's wages. The master said: "He has been transported before, and ought to be transported again. He has been robbing me of nine quartern loaves a week." Lord Ellenborough held the remark absolutely privileged, if the master spoke them in opening his defence to the Court; but otherwise if he spoke them while waiting about the room and not for the purpose of his defence. Trotman v. Dunn, 4 Camp. 211. [N.B.-The latter part of the headnote to the report of this case is misleading.] Plaintiff made an affidavit in an action he had brought against defendant in the King's Bench. Defendant (apparently conducting his own case) said in Court, in answer to this affidavit: "It is a false affidavit, and forty witnesses will swear to the contrary." Held, that no action lay for these words. Boulton v. Chapman, (1640) Sir W. Jones, 431; March, 20, pl. 45. A charge of felony made by the defendant when applying in due course to a justice of the peace for a warrant to apprehend the plaintiff on that charge is absolutely privileged. Ram v. Lamley, Hutt. 113. See Johnson v. Evans, 3 Esp. 32. Weston v. Dobniet, Cro. Jac. 432. Dancaster v. Hewson, 2 Man. & R. 176. Witnesses. A witness in the box is absolutely privileged in answering all the questions asked him by the counsel on either side; and even if he volunteers an observation (a practice much to be discouraged), still, if it has reference to the matter in issue, or fairly arises out of any question asked him by counsel, though only going to his credit, such observation will also be privileged. (Seaman v. Netherclift, 1 C. P. D. 540; 2 C. P. D. 53; 46 L. J. C. P. 128.) But a remark made by a witness in the box, wholly irrelevant to the matter of inquiry, uncalled for by any question of counsel, and introduced by the witness maliciously for his own purposes, would not be privileged, and would also probably be a contempt of Court. So, of course, an observation made by a witness while waiting about the Court, before or after he has given his evidence, is not privileged. (Trotman v. Dunn, 4 Camp. 211; Lynam v. Gowing, 6 L. R. Ir. 259.) Illustrations. Defendant, an expert in handwriting, gave evidence in the Probate Court in the trial of Davies v. May, that, in his opinion, the signature to the will in question was a forgery. The jury found in favour of the will, and the presiding judge made some very disparaging remarks on defendant's evidence. Soon afterwards defendant was called as a witness in favour of the genuineness of another document, on a charge of forgery before a magistrate. In cross-examination he was asked whether he had given evidence in the suit of Davies v. May, and whether he had read the judge's remarks on his evidence. He answered, "Yes." Counsel asked no more questions, and defendant insisted on adding, though told by the magistrate not to make any further statement as to Davies v. May: “I believe that will to be a rank forgery, and shall believe so to the day of my death." One of the attesting witnesses to the will brought an action of slander for these words. Held, that the words were spoken by defendant as a witness, and had reference to the inquiry before the magistrate, as they tended to justify the defendant, whose credit as a witness had been impugned; and the defendant was therefore absolutely privileged. Seaman v. Netherclift, 1 C. P. D. 540; 45 L. J. C. P. 798; 24 W. R. 884; 34 L. T. 878; (C. A.) 2 C. P. D. 53; 46 L. J. C. P. 128; 25 W. R. 159; 35 L. T. 784. Defamatory communications made by witnesses or officials to a court-martial, or to a court of inquiry instituted under articles of war, are absolutely privileged. Keighley v. Bell, 4 F. & F. 763. Dawkins v. Lord Rokeby, L. R. 8 Q. B. 255; 42 L. J. Q. B. 63; 21 W. R. 544; 4 F. & F. 806; 28 L. T. 134; L. R. 7 H. L. 744; 45 A letter written privately to the judge to influence his decision, whether by a party, or a witness, or anyone else, is not privileged. It is indeed a contempt of Court. Gould v. Hulme, 3 C. & P. 625. Documents used in Judicial Proceedings. All documents necessary to or properly used in a judicial proceeding are absolutely privileged: e.g., all pleadings delivered or affidavits sworn in the course of a judicial proceeding before a Court of competent jurisdiction. (Revis v. Smith, 18 C. B. 126; 25 L. J. C. P. 195; Henderson v. Broomhead, 4 H. & N. 569; 28 L. J. Ex. 360; 5 Jur. N. S. 1175.) So is any indorsement on a writ. (Lord Beauchamps v. Sir R. Croft, Dyer, 285 a.) So is the official record of any judicial proceeding even though inaccurately or improperly entered. (MacCabe v. Joynt, (1901) 2 Ir. R. 115.) But a report of a judicial proceeding is not a document in the case and the privilege attaching to it is only qualified. (See post Chap. XI.) The only exception is where an affidavit is sworn before a Court that has no jurisdiction in the matter, and no power to entertain the proceeding. (Buckley v. Wood, 4 Rep. 14 a; Cro. Eliz. 230; R. v. Salisbury, 1 Ld. Raym. 341; Maloney v. Bartley, 3 Camp. at p. 212; Lewis v. Levy, E. B. & E. 554; 27 L. J. Q. B. 282; 4 Jur. N. S. 970.) In all other cases the plaintiff's only remedy is to indict the deponent for perjury. (Doyle v. O'Doherty, Car. & M. 418; Astley v. Younge, 2 Burr. 807.) The Court will, however, sometimes order scandalous matter in such an affidavit to be expunged. (Christie v. Christie, L. R. 8 Ch. 499; 42 L. J. Ch. 544; 21 W. R. 493; 28 L. T. 607.) But, even for matter thus expunged, no action can be brought. (Kennedy v. Hilliard, 10 Ir. C. L. R. 195; 1 L. T. 78.) Illustrations. No action of libel can be maintained against a plaintiff for signing judgment in an action, even though such judgment be subsequently set aside, as being irregular or contrary to good faith. "The procuring by the plaintiff of the entry of the judgment upon the rolls of the Court cannot amount to an actionable publication of a libel." Nor can the subsequent docketing and registration of such judgment in the official books of any statutory Registry. M'Laughlin v. Doey, 32 L. R. Ir. 518, 528. MacCabe v. Joynt, (1901) 2 Ir. R. 115. No action lay for defamatory expressions contained in a bill in Chancery; Hare v. Mellers, 3 Leon. 138, 163; as explained by Pollock, B., 16 Q. B. D. at p. 113; or in any pleading or proceeding in an ecclesiastical court; Weston v. Dobniet, Cro. Jac. 432; or in articles of the peace. Cutler v. Dixon, 4 Rep. 14 a. Statements contained in the judgment of a court-martial, or in the report of a military court of inquiry, are absolutely privileged. Jekyll v. Sir John Moore, 2 B. & P. N. R. 341; 6 Esp. 63. Home v. Bentinck, 2 B. & B. 130; 4 Moore, 563. Oliver v. Bentinck, 3 Taunt. 456. So also are statements contained in a written declaration handed in by a witness who gives evidence before a court-martial. Dawkins v. Lord Rokeby, L. R. 7 H. L. 744; 45 L. J. Q. B. 8; 23 No action will lie for defamatory expressions against a third party, contained in an affidavit made and used in the proceedings in a cause, though such statements be false, to the knowledge of the party making them, and introduced out of malice. Henderson v. Broomhead, 28 L. J. Ex. 360; 4 H. & N. 569; 5 Jur. Astley v. Younge, 2 Burr. 807; 2 Ld. Kenyon, 536. Revis v. Smith, 18 C. B. 126; 25 L. J. C. P. 195; 2 Jur. N. S. 614. Hartsock v. Reddick, 6 Blackf. (Indiana), 255. The defendant exhibited a bill in the Star Chamber charging the plaintiff, inter alia, with procuring murders and piracies, and for maintaining murderers and pirates, charges over which the Star Chamber had no jurisdiction. Held, that for so much of the bill as contained matter which was "not examinable in the said Court, an action on the case lies; for that cannot be in a course of justice." Buckley v. Wood, 4 Rep. 14 a; Cro. Eliz. 230. Thorn v. Blanchard, 5 Johns. 508. Statements contained in objections carried in against a solicitor's bill of costs, |