1837.-Heslop v. Metcalfe. lieve a defendant, and give him the benefit provided for him by the statute, it will never do so in such a manner as to prejudice the interests of a plaintiff. The present plaintiff, who, having been perfectly regular, is in a situation to obtain the reliet he seeks in the course of a few days, would, if I discharged the defendant, be under the necessity of beginning again. The defendant, besides, is not entitled to favor, for he has not come forward to ask the assistance of the court till the very last moment, when the plaintiff is on the point of getting the fruits of his suit; his object being to stop the plaintiff, and compel him to commence his proceedings anew. The proper course will be to let the motion stand over for the present; and if the plaintiff does not do that which he asserts he is in a condition to do, the defendant may then bring it on again. *HESLOP V. METCALFE. [*183] 1837; December, 20, 22. Order made on a solicitor, who withdrew from the conduct of the plaintiff's cause that he should deliver up to the plaintiff's new solicitor the briefs of the pleadings, counsel's opinions thereon, office copies of the several answers, and all such other papers and documents, connected with the cause, as upon inspection, such new solicitor might deem necessary for the hearing; without preju dice to any right of lien for costs, and upon an undertaking to return them undefaced within ten days after the hearing. RICHARD TILLYER BLUNT was employed as the plaintiff's solicitor in the conduct of this suit, from the period of its institution, in the month of September, 1834. On the 12th of January, 1836, he delivered his bill of costs, from which it appeared that after, giving credit for certain sums advanced by the plaintiff, there was due to him, on account of his charges in this cause, independently of other charges, a balance of 971. On the 12th of February, 1836, Mr. Blunt sent a letter to the plaintiff, in which he stated that he had no funds in his hands available to the prosecution of the suit, and that he must, therefore, request payment of the balance of 2157. '1s. 4d., due on his general bill of costs delivered, and the subsequent costs; otherwise, the plaintiff must abide the consequences. On the 9th of the same month, Mr. Blunt had sued out a writ against the plaintiff for the amount of the alleged balance; and upon that writ the plaintiff was, on the 15th of February, arrested and held to bail. A second bill of costs, amounting to 36l. 19s., and including the charges for business done in this cause from the 12th of November, 1835, to the 15th of February, 1836, was subsequently delivered; and, on the 26th of May, 1836, the plaintiff received a letter from Mr. Blunt, in which, referring to an application made to him by the clerk in court in the cause. of Heslop v. Metcalfe, the petitioner stated that he (Blunt) should proceed no further in that cause, unless the request contained in his letter of the 12th of February, were complied with before one o'clock on the following day. On receiving this communi 1837.-Heslop v. Metcalfe. cation, the plaintiff instructed another solicitor, of the name of Green, [184] to take the *necessary steps for proceeding with the cause. Those steps were accordingly taken, and the cause was afterwards set down for hearing before his Honor the Vice-Chancellor. On the 18th October, 1836, Blunt commenced an action to recover the amount of his second bill of costs. To this action the plaintiff put in a plea, on the 13th of December, and since that time no further proceedings had been taken in the action. Pending the proceedings at law, the cause in this court being likely to be soon in the paper for hearing, the plaintiff's solicitor, Mr. Green, applied by letter to Mr. Blunt, requesting him to give up the papers in the suit, upon his (Green's) undertaking to hold them subject to any lien which Blunt might have upon them. In reply to that application, Mr. Blunt declined to part with any of the papers, alleging that he had a lien upon them for costs of proceedings both in equity and at law, but he offered to allow the plaintiff or his solici tor to inspect, peruse, and take copies of them at all reasonable times, and offered to undertake to produce them at the hearing. Some further negoti ations were afterwards had to induce Mr. Blunt to give up the papers in his hands, with a view to their being used at the approaching hearing, but without success; Mr. Blunt declining to part with them unless his costs were paid. The Vice-Chancellor then made an order, upon the petition of the plaintiff, that the briefs of the pleadings in the cause, counsel's opinion thereon, office copies of the answers of the several defendants, and all such other deeds and papers, documents and proceedings, in or connected with the cause, as, upon inspection, his solicitor might deem to be necessary on the plain tiff's behalf, on the hearing of the cause, should be delivered over [*185] by Mr. Blunt to Mr. Green, on the latter giving his undertaking that they should be received without prejudice to any right of lien, and also that they should be returned, undefaced, to Mr. Blunt within ten days after the hearing of the cause.[1] An appeal petition, presented by Mr. Blunt against his Honor's order, now came on to be heard. Mr. Jacob and Mr. Addis, in support of the appeal :-No case has occurred in which an order, at all similar to the present, has been made, with the exceptton of Colegrave v. Manley.(a) which occurred in the year 1823, and which is at variance with the whole current of authorities both before and since. There, the solicitor had discharged himself by selling his business to another solicitor; and the main question in the cause had reference to the legality of that transaction. The order for the delivery of the papers was, apparently, not much discussed, the question of lien being only a subordinate point. In Ross v. Laughton, (b) which occurred in the year 1813, and is the earliest (a) 1 Turn. & Russ. 400. (b) 1 Ves. & B. 349. [1] The case before the Vice-Chancellor, Sir L. Shadwell, is reported, 8 Sim. 622. 1837.-Heslop v. Metcalfe. reported case upon the subject, it was not the client, but his assignees, who discharged the solicitor. Lord Eldon thought that circumstance made no difference, and held that a solicitor, who was discharged, was bound to produce, but not to deliver up, the papers of his client. The papers there in question were vouchers, that is, original documents, and not, as in the present instance, papers prepared by the solicitor, or copied and made out at his expense. The next case was Commerell v. Poynton, (a) where the solicitor had himself declined to proceed, and the order made was of the same kind, for production and inspection only. *In Lord v. Wormleighton, (b) the solicitor had been discharged [*186] by the client; or rather, the executors of the client had declined to continue to employ him; and, at the time of the client's death, the papers in the cause, and the documents and vouchers relating to it, were in the solicitor's hands. Lord Eldon, in the course of his judgment, there states his impression to be, that the solicitor "ought to be able to make use of the non-production of the papers, in order to get at what is due to him." In Moir v. Mudie, (c) where the solicitor had discharged himself, the application was for delivery, but the order was limited to inspection merely. In Twort v. Dayrell, (d) the Lord Chancellor says, "the party cannot take his papers out of the hands of his solicitor without paying his bill, and the probability is very strong that the party cannot stir a step in the cause without the papers." In Clutton v Pardon, (e) Lord Eldon took precisely the same view although he stated, that where a party had a pressing necessity for papers, the court would order them to be delivered over, upon a deposit being made sufficient to cover what was due upon the bill and the costs of taxation. No proposal of that kind has been made here. It is not denied that a large sum is due to Mr. Blunt, in respect of his bill of costs; and if the lien exists at all, it is inconceivable that it should be so qualified as it is by the terms of the order appealed from, the effect of which would be to render the lien utterly worthless. *The LORD CHANCELLOR (without calling upon Mr. Wigrum, who [*187] was on the other side):-Since this question was first brought on, I have taken the opportunity of looking at all the cases; and I have now to consider whether I will act on Colegrave v. Manley, or will undo what Lord Eldon did in that case. The point was there directly raised, whether, if the court is of opinion that there should be a production, the order ought to go beyond giving liberty to inspect and take copies. Lord Eldon, in his judgment, first considered the question arising upon the sale of his business, by the solicitor; an act which he held to amount to a discharge by the solicitor of himself. His Lordship says, "I look upon Mr. Raphael as having dissolved the connection of solicitor and client; for it is not enough that he was willing to superintend (a) 1 Swan. 1. (d) 13 Ves. 195; see p. 197. (b) Jac. 580. 1837.-Heslop v. Metcalfe. the plaintiff's business. Now, where the solicitor discharges himself, the rule is quite different from what it is where the solicitor is discharged by the client;" and afterwards he adds, "so far as the use of the papers is concerned, the suitor, when his solicitor discharges himself, must have his business conducted with as much ease and celerity, and as little expense, as if the connection of solicitor and client had not been dissolved." Accordingly, the order in Colegrave v. Manley was almost in the very terms of the present order. It is true that in several preceding cases, where the solicitor had discharged himself, orders were made, giving to the client the right of inspection only: but it cannot be supposed that Lord Eldon, who, with all his experience, had decided Colegrave v. Manley, in the year 1823, was not acquainted [*188] with the prior authorities. In *Cresswell v. Byron,(a) his Lordship intimates, in the form of a doubt, his opinion that a solicitor discharging himself cannot claim a lien; an expression which must be understood as meaning, not that the solicitor loses the lien altogether, bnt that he cannot set it up so as to prevent the client from proceeding in the cause. And his Lordship's language in Lord v. Wormleighton, (b) is to the same effect. Undoubtedly, that doctrine may expose a solicitor to very great inconvenience and hardship, if, after embarking in a cause, he finds that he cannot get the necessary funds wherewith to carry it on. But, on the other hand, extreme hardship might arise to the client, if,-to take the case which is not uncommon in the smaller practice in the country-a solicitor, who finds a poor man having a good claim, and having but a small sum of money at his command, may go on until that fund is exhausted, and then refusing to proceed further, may hang up the cause by withholding the papers in his hands. That would be a great grievance and means of oppression to a poor client, who, with the clearest right in the world, might still be without the means of employing another solicitor. The rule of the court must be adapted to every case that may occur, and be calculated to protect suitors against such conduct. Now, a solicitor, if he knows that he must trust to the result of the cause for his renumeration, will, of course be disposed to proceed with it in such a way as, while it promotes the interest of his client, is most likely to render his lien available. I have no doubt, therefore, that the existence of the lien, [*189] while it is a great protection to the solicitor against his client, is *also a great benefit to the client; but the benefit would be entirely lost, if the solicitor might stop short in the middle of the suit, and insist upon retaining the papers, because then no other solicitor could take up and carry on the cause. It is admitted that, when the solicitor discharges himself, the client and his new solicitor shall, at all events, have free access to inspect and copy the papers at the office of the former solicitor. The mere giving of access, how 1837.-Heslop v. Metcalfc. ever, is, nine times out of ten, of no practical value; for if the papers are to remain, notwithstanding, in the custody of the solicitor who has discharged himself, it is obvious that they cannot be made use of in the further progress of the suit. The result would be, that the client is to be put to the expense of fresh copies; that fresh briefs must be prepared for counsel; in short, that all the costs arising from making copies of the papers and documents to be used in the cause must be incurred over again, and so the client is to be greatly damnified. That is entirely inconsistent with the dictum of Lord Eldon, that the suitor must have his business conducted with as much ease and celerity, and as little expense, as if the connection had not been dissolved. On the other hand, if all that expense be, in fact incurred by the client, what is the use of the solicitor's lien? There may, indeed, be original papers; but supposing them, as here, to be papers in the cause, the effect of the rule would only be to impose a very great hardship on the client, without any benefit to the solicitor. But if the expense is to operate so as to compel him. rather to pay the solicitor's bill than to go to the expense of fresh copies, the admission of access and inspection would be nugatory, and of no value. Now, that a suitor, whose solicitor withdraws himself from the *further conduct of a cause, shall be permitted to have the free use of [*190] the papers held by that solicitor, so far as they may be required in the prosecution of the cause, is quite consistent with the observations of Lord Eldon in Commerell v. Poynton, and Lord v. Wormleighton. Those observations, coupled with the express decision to that effect in Colegrave v. Manley, leave no doubt in my mind as to what Lord Eldon considered to be the rule in such cases, and I entirely concur in the propriety of that rule. It remains only to be considered, whether Mr. Blunt must be held to have retired from the performance of his duty as solicitor in this cause. [The Lord Chancellor entered into an examination of the particular facts of the case, as stated in the affidavits, and then continued]:-I cannot but consider that the result of these transactions amounted, on the part of Mr. Blunt, to a withdrawing of himself from the office of solicitor for the plaintiff. I then take the law as laid down by Lord Eldon, and, adopting that law, must hold that Mr. Blunt is not to be permitted to impose upon the plaintiff the necessity of carrying on his cause in an expensive, inconvenient and disadvantageous manner. I think the principle should be, that the solicitor claiming the lien, should have every security not inconsistent with the progress of the cause. But it is clear that there will neither be, to use the expression of Lord Eldon, the same ease and celerity, nor as little expense, in the conduct of it, if the new solicitor is merely to have access to the papers, as where they are placed in his hands, upon his undertaking to restore them after the immediate purposes of the production have been served. Appeal dismissed with costs.[1] [1] Vide Brassington v. Brassington, 1 Sim. & Stu. 455, 7, n. 1, where the American editor has collected some more recent decisions on the subject. After demurrer allowed, the plaintiff's |