Ameer Ali, J.
1. This is an application on the part of the plaintiff for change of attorney. The application is resisted by the attorney on the record, on the ground that the order can be obtained only on the usual terms of paying the costs due to him, and that, so long as the attorney to whom the plaintiff proposes to entrust the conduct of the case does not pay the costs due to the attorney on the record, or give an undertaking for such payment, he should not be compelled to make over the papers in the suit.
2. The law relating to the question of an attorney's lien on papers held by him for his client is well settled. If the client himself discharges the solicitor, the latter is entitled to hold the papers till his costs are paid or a satisfactory undertaking given that such costs would be paid. But where the attorney discharges himself expressly or by implication, he has no Such right, and he has to make over the papers to the attorney, to whom the client proposes to go, retaining his lien on such papers. As early as the year 1837 the question was settled by the decision in Heslop v. Metcalfe (1837) 3 Myl. and Cr. 183.
3. There the same objection as is now raised was put forward before the Lord Chancellor, and the inconvenience and hardship to which the attorney would be exposed if, after embarking in a cause, ho was not provided with sufficient funds and the case was changed to other hands, were pointed out.
4. The Lord Chancellor dealing with this argument and proceeding upon the judgment of Lord Eldon in the case of Colegrave v. Manley (1823) 1 Turn, and Rush. 400, held that, under the circumstances of that case, the solicitor was bound to make over the papers to the new solicitors, retaining his usual lien on the same. That case has been followed in many other cases. I shall refer only to two. In Robins v. Goldingkam (1872) L. R. 13 Eq. 440, the Vice-Chancellor; after referring to the case of Colegrave v Manley (1823) 1 Turn, and Russ. 400 and Heslop v. Metcalfe (1837) 3 Myl. and Cr. 183, made an order to the effect that the papers should be made over by the solicitor on the record to the new solicitors 'on their undertaking to receive and hold them without prejudice to any right of lion, and to return them undefaced in reasonable time.'
5. The same course was taken in the case of Wilson v. Emmett (1854) 19 Beav. 233, and the order was in similar terms. The Master of the Rolls there said: 'I must follow Heslop v. Metcalfe (1837) 3 Myl. and Cr. 183. Sir James Wigram in Griffiths v. Griffiths (1854) 19 Beav. 233 made a like order, on the ground of discharge. The same order must be made here as in Heslop v. Metcalfe (1837) 3 Myl. and Cr. 183, and the paper must be given up to the new solicitors.'
6. It is unnecessary to refer to the case of Basanta Kumar Mitter v. Kusum Kumar Mitter (1900) 4C. W. N. 767. I proceed now to deal with the facts of the present case. The plaintiff states in his petition that he has paid to the attorney on the record, Babu Romesh Chunder Mitter, a considerable sum of money and that he with the consent of the attorney took briefs to counsel to whom they were delivered some time ago. Thereafter the attorney called on the plaintiff to pay a largo sum of money, which he was unable to do, but he on his side made an offer, which the attorney refused. Thereupon Babu Romesh Chunder Mitter did not attend Court to instruct counsel and practically refused to prosecute his case. The plaintiffs statements contained in his affidavit are corroborated by the statements of counsel in Court.
7. Mr. Sinha stated that he had sent for the attorney himself and spoken to him, and that the attorney had told him and his junior not to appear at the hearing of the case when called on.
8. The case came on for hearing on the 3rd of December and on the statement of counsel, Babu Romesh Chunder Mitter not being present, I sent for him to ascertain his reason for not prosecuting the plaintiff's case. He appeared after some delay and stated to the Court, what has been alleged on his behalf, that a considerable sum was due to him and he was not in a position to prosecute the plaintiff's case, and he admitted in terms that he had not been properly instructed and that therefore had told counsel not to appear, and that was why he did not attend himself.
9. The attorney has filed an affidavit in which he states that the plaintiff does not live in Calcutta, that he had taken the briefs from him and delivered them to counsel of his own choice without consulting him, and that, if he was to make over the papers to the new attorney, he would not be in a position to recover his costs.
10. It appears to me that when he took up the plaintiff's case it was his duty to assure himself whether the plaintiff was a person of substance. In my opinion, having once undertaken the con-duct of a case, an attorney is bound, whether the client is rich or poor, to proceed with due diligence in prosecuting the claim. 'The law has provided him with means for realising his costs from his client. He cannot, to use the language of the learned Judges, to whom I have referred, turn round and say that, unless a considerable sum is paid to him, he will not do what he is bound to do; viz., to conduct and prosecute his client's case with diligence and honesty.
11. It appears to me that the attorney in this case discharged himself by telling the counsel not to appear and by making U impossible for the plaintiff to proceed with the action.
12. I will make the order on the same terms as the Vice-Chancellor in the case of Robins v. Goldingham.
13. I order the change of attorney. Babu Romesh Chunder Mitter is directed to make over the papers to Baboo Radhika Lall Mookerjee on the latter's undertaking to receive and' hold them without any prejudice to any, lien possessed by Babu Romesh Chunder Mitter, and to return them undefaced within a fortnight from the conclusion of the suit. If the attorney (Babu Romesh Chunder Mitter) seeks for inspection of those papers, I will allow the same.
14. Mr. Bell. I ask for an order for costs of this application as against Babu Romesh Chnnder personally on the ground that ho has been wrong throughout: Robins v. Goldingham (1872) L.R. 13q 440.
15. The Court. In my opinion Babu Romesh Chunder Mitter has been clearly wrong and I will make the same order as in that case and make him pay the costs of this application. I certify for counsel.