TOR ; LIEN.
In Practice. The act of a client by which, he.engages an attorney or counsellor to man age a cause, either by prosecuting it, when he is plaintiff, or defending it, when he is defendant.
The retaining fee.
In English practice a much more formal retainer is usually required than in American. Thus it is said by Chitty, 3 Front. 116, note m, that, al though it is not indispensable that the retainer should be in writing, unless required by the other side, it is very expedient. It is therefore recom mended, 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 oontvivance, it should be wit nessed 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, espe cially if they are trustees or assignees of a Mink rupt or insolvent. The retainer should also state whether it be given for a general or a qualified authority. See 9 Wheat. 738, 830; 6 Johns. N. Y. 34, 296 ; 11 id. 464; 1 N. H. 23 ; 28 id. 302; 7 Earn & J. Md. 275; 27 Misi. 567.
2. The effect of a retainer to prosecute or defend a suit is to confer on the attorney all the powers exercised by the forms and usages of the courts in which tbe suit is pending.
2 M'Cord, Ch. So. C. 409 ; 13, Mete. Mass. 269. He may receive payment, 13 Mass. 320; 4 Conn. 517 ; 1 Me. 257 ; 39 id. 386 ; 1 Wash. C. C. 10 ; 8 Pet. 8 ; may bring a second suit after being nonsuited in the first for want of formal proof, 12 Johns. N Y. 315 ; may sue a writ of error on the judgment, 16 Mass. 74 ; may discontinue the suit, 6 Cow. N. Y. 385 ; may restore an action after a nol. pros., 1 Binn. Penn. 469 ; may claim an appeal, and bind his client in his name for the prosecu tion of it, 1 Pick. Mass. 462 ; may submit the suit to arbitration, 1 Dall. Penn. 164 ; 16 Mass. 396 ; 8 Rich. So. C. 468; 6 McLean, C. C. 190 ; 7 Cranch, 436 : may sue out an
alias execution, 2 N. II. 376 ; see 9 Metc. Mass. 423 ; may receive livery of seisin of land taken by an extent, 13 Mass. 363 ; may waive objections to evidence, and enter into stipulation for the admission of facts or con duct of the trial, 2 N. II. 520, and for release of bail, 1 Murph. No. C. 146 ; may waive the right of appeal, review, notice, and the like, and confess judgment. 5 N. H. 393 ; 4 T. B. Monr. Ky. 377 ; 5 Pet. 99. But he has no authority to execute a discharge of a debtor but upon the actual payment of the full amount of the debt. 8 Dowl. 656 ; 8 Johns. N. Y. 361 ; 10 id. 220 ; 10 Vt. 471 ; 32 Me. 110 ; 36 id. 496 ; 21 Conn. 245 ; 3 Md. Ch. Dec. 392 ; 14 Penn. St. 87 ; 13 Ark. 644 ; I Pick. Mass. 347, and that in money only, 16 Ill. 272 ; 1 Iowa, 360 ; see 6 Barb. N. Y. 201; nor to release sureties, 3 J. J. Marsh, Ky. 532 ; 4 McLean, C. C. 87 ; nor to enter a retraxit, 3 Blackf. Ind. 137 ; nor to act for the legal representatives of his deceased client, 2 Penn. N. J. 689 ; nor to release a witness. 2 Greenleaf, Ev. 141 ; 6 Barb. N. Y. 392. See 13 Mete. Mass. 413 ; 29 N. H. 170 ; 13 N. Y. 377 ; 36 Me. 339 ; 3 Ohio St. 528 ; 12 Mo. 76 ; 25 Penn. St. 264.
3. There is an implied contract on the part of attorney who has been retained, that he will use due diligence in the course of legal proceedings; but it is not an under taking to recover a judgment. Wright, Ohio, 446. See 3 Campb. 17 ; 7 Carr. & P. 289 ; 2 Bingh. No. C. 625; 16 Serg. & R. Penn. 368 ; 2 Cush. Mass. 316. An attorney is bound to act with the most scrupulous honor ; he ought to disclose to his client if he has any adverse retainer which may affect his judgment or his client's interest; but the concealment of the fact does not necessarily imply fraud. 3 Mas. C. C. 305 ; 2 Greenleaf, Ev. 139.