1. This is an application for a change of attorneys by the defendants in the suit.
2. The applicants ask that the order for change be made without ordering the clients to pay to the attorneys the amount of their bill which may be found due on taxation on the ground that the attorneys have discharged, themselves.
3. It appears that in September last the accountant of the attorneys had an interview with one of the defendants when the latter promised to make a payment on account of the attorney's costs.
4. The clients having failed to fulfil their promise, the attorneys on the 7th October wrote to the clients pressing them to make the payment and informing them that 'otherwise we shall not be able to proceed in your matter'.
5. On the 21st November, one of the clients called on the attorneys and requested them to brief two gentlemen as Counsel in the suit, but the attorneys refused unless they were put in funds by the client to pay the fees to Counsel.
6. Now pausing there for one moment, it seems to me on the authorities that the attorneys by refusing to act for the clients unless the clients put them in funds to pay the fees on the briefs to Counsel was a discharge of themselves by the attorneys.
7. The exact point was decided by Vice-Chancellor Malins in the case of Robins v. Goldingham (1872) 13 Eq. 440; 41 L.J. Ch. 813: 25 L.T. 900; 20 W.R. 277 which case has been followed and approved both in England and in this Court see Basanta Kumar Mitter v. Kusum Kumar Mitter 4 C.W.N. 767 Atul Chander Mukerjee v. Shoshi Bhushan Mullick 6 C.W.N. 215; 29 C. 63.
8. It is said, however, that these cases are distinguishable on the ground that after the attorneys had discharged themselves, the clients instructed them to instruct Counsel to apply for an adjournment pending the hearing of the application for a change. If after receiving those instructions to brief Counsel to apply for an adjournment, the attorneys had expressed their willingness to go on with the litigation, there might have been a good deal to say on behalf of the attorneys, but even now the attorneys are not willing to go on with the litigation except on the footing that they are put in funds to pay at any rate the fees on briefs to Counsel. The contract of the attorneys was an entire contract to carry on the litigation to its termination subject to their being paid. The mere fact that the clients have expressly undertaken to put the attorneys in funds, which promise the clients have not performed, does not operate as a discharge by the clients see Bluck v. Lovering 35 W.R. 232 . The demand of attorneys to be paid the amount of the fees on the briefs to be delivered to Counsel was a discharge by the attorneys of themselves. But then it is Slid that although the clients might have accepted the discharge of the attorneys, they did not in fact do so but promised to put the attorneys in funds to carry on the litigation and, therefore, the discharge was by the clients. In support of that, an order made by Sale, J., on the 3th June 1906 in a Suit No. 595 of 1904, has been handed to me by the learned Counsel for the attorneys. I have not been able to find any judgment of Sale, J., on that application. It may be that the order in the form made by Sale, J., was not opposed. But it appears clear, that when an attorney refuses to proceed with the suit because the client does not put him in funds to conduct the litigation, the attorney discharges himself Bluck v. Lovering 35 W.R. 232.
9. It makes no difference, whether the promise to put the attorney in funds is made prior to or during the suit. I must, therefore, make the order for change in the form mentioned in the judgment of Ameer Ali, J., in Atul Chander Mookerjee v. Shoshi Bhusan Mullick 6 C.W.N. 215; 29 C. 63.
10. There will be no order as to the costs of this application.