Retainer

The act of withholding what one has in one's own hands, by virtue of some right. See "Administrator;" "Executor;" "Lien." In Practice. The act of a client by which he engages an attorney or counsellor to manage a cause, either by prosecuting it, when he is plaintiff, or defending it, when he is defendant. 200 Ill. 353. The word is also used to denote the fee which the client pays his attorney when he retains him to act for him, and thereby prevents him from acting for his adversary. 200 Ill. 353; 38 Kan. 668. In English practice, it has been said (1 Archb. Prac. 116, note [m]), that, although it is not indispensable that the retainer should be in writing, unless required by the other side, it is very expedient. It is therefore recommended, particularly when the client is a stranger, to require from him a written retainer, signed by himself, and, in order to avoid the insinuation that it was obtained by contrivance, it should be witnessed by one or more respectable persons. When there are several plaintiffs, it should be signed by all, and not by one for himself and the others, especially if they are trustees or assignees of a bankrupt or insolvent. The retainer should also state whether it be given for a general or a qualified authority. See 9 Wheat. (U. S.) 738, 830; 6 Johns. (N. Y.) 34, 296; 11 Johns. (N. Y.) 464; 1 N. H. 23; 28 N. H. 302; 7 Har. & J. (Md.) 275; 27 Miss. 567.

The act of withholding what one has in one’s own hands, by virtue of some right. See Executors and Administrators. “If an executor has as much goods in his hands as his own debt amounts to, tbe property of those goods is altered and rests in himself; that is, he has them as his own proper goods in satisfaction of his debt and not as executor.” Plowden 1S4. See O. W. Holmes, Early Engl. Executors in 9 Harv. L. Rev. 42; 3 Sel. Essays in Anglo-Amer. L. H. 737. This doctrine has lately been applied where the debt due by an insolvent testator to his executor greatly exceeded the value of the assets, and it was held that the executor was entitled to retain them in specie in payment of his debt; USDS] 1 Q. B. 282, discussing 9 Mod. 268; but not if he is an undischarged bankrupt; [1911] 1 K. B. 327. In Practice. The act of a client by which he engages an attorney or counsellor to manage a cause, either by prosecuting it, when he is plaintiff, or defending it, when he is defendant. The retaining fee. A general retainer merely gives a right to expect professional service when requested. It binds the person retained not to take a fde from another against his retainer; but to do nothing except what he is asked to do, and for this he is to be distinctly paid; Rhode Island Exch. Bk. v. Hawkins, 6 R. I. 200. In English practice a much more formal retainer is usually required than in America. Thus it is said by Chitty, 3 Pr. 116, note m, that, although it is not indispensable that the retainer should be in writing, unless required by the other side, it is very expedient. It is therefore recommended, particularly when the client is a stranger, to require from him a written retainer, signed by himself; and, In order to avoid the insinuation that it was obtained by contrivance, it should be witnessed by one or more respectable persons. Whe^ there are several plaintiffs, it should be signed by all, and not by one for himself and the others, especially if they are trustees or assignees of a bankrupt or Insolvent. The retainer should also state whether it be given for a general or a qualified authority. See Osborn v. Bank, 9 Wheat. (U. S.) 738, 830, 6 L. Ed. 204* Jackson v. Stewart, 6 Johns. (N. Y.) 34; Henck v. Todhunter, 7 Harr. & J. (Md.) 275, 36 Am. Dec. 300; although the solicitor has aot received any express except that he may take the necessary steps retainer; [1891] 1 Ch. 837. to collect the judgment; Cruikshank v. Good- The effect of a retainer to prosecute or win, 60 Hun C26, 20 N. T. Supp! 757. defend a suit is to confer on the attorney There is an implied contract on the part all the powers exercised by the forms and of an attorney who has been retained, that usages of the courts in which the suit is he will use due diligence in the course of lepending; Bell v. Hutchinson, 2 Mc Cord (S. gal proceedings; but it is not an undertaking C.) 409; Lewis v. Sumner, 13 Mete. (Mass.) to recover a judgment; Hall V. Kerr, Wright 269. He may receive payment; Langdon v. (Ohio) 446. See 7 C. & P. 289; Babbitt v. Potter, 13 Mass. 320; Brackett v. Norton, 4 Bum pus, 73 Mich. 331. An attorney is bound Conn. 517, 10 Am. Dec. 179; Ducett v. Cun- to act with the most scrupulous' honor; he ningham, 39 Me. 386; may bring a second ought to disclose to his client if he has any suit after being nonsuited in the first for adverse retainer which may affect his judgwant of formal proof; Scott v. Elmendorf, ment or his client’s interest; but the con- 12 Johns. (N. Y.) 315; may sue a writ of cealment of the fact does not necessarily imerror on the judgment; Grosvenor v. Dan- ply fraud; Williams v. Reed, 3 Mas. 405, forth, 16 Mass. 74; may discontinue the Fed. Cas. No. 17,733. See Weeks, Att. at suit; Gaillard v. Smart, 6 Cow. (N. Y.) 385; Law. may restore an action* after a nol, pros.; RETAINING A CAUSE. Under the Eng- Reinholdt v. Alberti, 1 Binn. (Pa.) 469; may lish Judicature Acts of 1873 and 1875, a claim an appeal, and bind his client in liis cause brought in a wrong division of the name for the prosecution of it; Adams v. High Court of Justice may be retained there- Robinson, 1 Pick. (Mass.) 462; may submit in, at the discretion of the court or a judge. the suit to arbitration; Buekland v. Conway, 16 Mass. 396; Mc Elreath v. Middleton, 89 RETAINING FEE. A fee given to counsel Ga. 83, 14 S. E. 906; may sue out an alias on being consulted, In order to insure his fuexecution; Cheever v. Mirrick, 2 N. H. 376; ture services. See Retainer. may receive livery of seisin of land taken RETAKING. The taking one’s goods, wife,,, by an extent; Pratt v. Putnam, 33 Mass. child, etc., from another, who without right 363; may waive objections to evidence, and has taken possession thereof. See Recapenter into stipulation for the admission of tion; Rescue. facts or conduct of the trial; Alton v. Gil-

1. The right of retainer ls the right which the executor or administrator of a deceased person has to retain out of the assets sufficient to pay any debt due to him from the deceased in priority to the other creditors whose debts are of equal degree. 3 Steph. Comm. 263. Mlller v. Irby, 63 Ain. 483; Taylor v. Deblois, 23 Fed. Cas. 765.
2. In English practice, a "retainer," as applied to counsel, is commonly used to signify a notice given to a counsel by an attorney on behalf of the plaintiff or defendant in an action, in order to sechre his services as advocate when the cause comes on for trial. Holthouse. Agnew v. Walden, 84 Ala. 502, 4 South. 672; Blackman v. Webb, 38 Kan. 668, 17 Pac. 464.
3. A servant, not menial or familiar,—that is, not continually dwelling in the house of his master, but only wearing his livery, and attending sometimes upon special occasions, —is, in old English usage, called a "retainer." Cowell.

— General retainer. A general retainer of an attorney or solicitor "merely gives a right to expect professional service when requested, but none which is not requested. It binds the person retained not to take a fee from another against his retainer, but to do nothing except what he is asked to do, and for this he is to be distinctly pnid." Rhode Island Exch. Bank v. Hawkins, 6 ItI. 206.

— Special retainer. An engagement or retainer of an attorney or solicitor for a special and designated purpose; as, to prepare and try a particular case. Agnew v. Walden, 84 Ala. 502, 4 South. 672.

The payment by an executor or administrator, out of the personal estate in his hands, of a debt due himself in preference to debts of equal degree due others; the engagement of an attorney or solicitor to act in a cause; the special authority conferred by the client upon such an engagement; the preliminary fee paid upon such an engagement In English law. A notice given to a counsel by an attorney on behalf of a party in an action, to secure his services as advocate when the cause comes on for trial; the preliminary fee paid upon such notice, called otherwise honorarium,

1. The act of engaging an attorney-at-law to prosecute or defend a cause; also, the formal notice given by the lawyer that he has been so retained; and, also, the fee paid — the "retaining fee." In particular, the fee of a barrister, or advocate, paid before it is earned. The old rule that all fees should be paid in advance, by removing pecuniary interest in the issue of suits, tended to maintain the independence and respectability of the bar. See Attorney. 2. At common law, the right in an executor or administrator to reserve assets enough to pay his own debt, before other creditors of equal degree. The reason was, he could not sue himself. Now, as a rule, unsecured debts share alike.

The payment by an executor of a debt due him from the estate, in preference to other debts of equal degree. The engagement of counsel by a party or attorney. A pre Hminary fee or honorarium.

1. The act of employing or engaging an advocate, barrister, attorney, counsel, solicitor, or proctor, to appear and prosecute or defend. The word is also used for the notice served by an attorney, &c., on the opposite party or attorney, that he has been retained; in which use it is by elision for notice of retainer: and for the fee paid to a lawyer upon his undertaking a cause; in which use it is by elision for retaining fee. 2. The right which an executor, who is a creditor of his testator, has to retain so much of the testator's assets as will pay his own debt is called the right of retainer; and the term would not be inapplicable in other cases of a depositary or trustee of funds who should claim to withhold a portion to reimburse his expenditures. Retention is also applied to this right. 3. A servant, not menial or familiar, — that is, not continually dwelling in the house of his master, but only wearing his livery, and attending sometimes upon special occasions, — is, in old English usage, called a retainer. Cowel. ing property until a debt due to the person claiming the right of retention shall be paid. Bell. See Retainek.