RETAINER. The act of withholding what one has in one's own hands, by virtue of some right. See EXECUTORS AND ADMINIS TRATORS.
"If an executor has as much goods in his hands as his own debt amounts to, the prop erty 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 184. See 0. 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 pay ment of his debt ; [1898] 1 Q. B. 282, discuss ing 9 Mod. 268; but not if he is an undis charged bankrupt ; [1911] 1 K. B. 327.
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 de fendant.
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 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 paid ; Rhode Island Exch. Bk. v. Hawkins, 6 It. I. 206.
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, particular ly 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 autlority. 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, 16 Am. Dec. 300; Hardin v. Ho-yo-po-nubby's Leslie% 27 Miss. 567. The existence of the relation of solicitor and client between parties may be inferred from their acts, although the solicitor has not received any express retainer; [1891] 1 Ch. 387.
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 the suit is pending ; Bell v. Hutchinson, 2 McCord (S. C.) 409; Lewis v. Sumner, 13 Mete. (Mass.) 269. He may receive payment; Langdon v. Potter, 13 Mass. 320 ; Brackett v. Norton, 4 Conn. 517, 10 Am. Dec. 179; Ducett v. Cun ningham, 39 Me. 386; may bring a second suit after being nonsuited in the first for want of formal proof ; Scott v. Elmendorf, 12 Johns. (N. Y.) 315; may sue a writ of
error on the judgment ; Grosvenor v. Dan forth, 16 Mass. 74 ; may discontinue the suit ; Gaillard v. Smart, 6 Cow. (N. Y.) 385; may restore an action after a no/. pros.; Reinholdt v. Alberti, 1 Binn. (Pa.) 469 ; may claim an appeal, and bind his client in his name for the prosecution of it; Adams v. Robinson, 1 Pick. (Mass.) 462; may submit the suit to arbitration; Buckland v. Conway, 16 -Mass. 396; McElreath v. Middleton, 89 Ga. 83, 14 S. E. 906; may sue out an alias execution ; Cheever v. Mirrick, 2 N. H. 376: may receive livery of seisin of land taken by an extent ; Pratt v. Putnam, 13 Mass. 363 ; may waive objections to evidence, and enter into stipulation for the admission of facts or conduct of the trial ; Alton v. Gil manton, 2 N. H. 520; and• for release of bail ; Hughes v. Hollingsworth, 5 N. C. 146; may waive the right of 'appeal, review, no tice, and the like, and confess judgment; Pike v. Emerson, 5.N. H. 393, 22 Am. Dec. 468 ; may agree to the entry of a judgment ; Devenbaugh v. Nifer, 3 Ind. App. 379, 29 N. E. 923 ; In re Maxwell, 66 Hun 151, 21 N. Y. Supp. 209 ; may waive a jury trial; Stevenson v. Felton, 99 N. C. 58, 5 S. E. 399. But he has no authority to execute a dis charge of a debtor except upon the actual payment of the full amount of the debt ; 8 Dowl. 656; Derwort v. Loomer, 21 Conn. 245; Walker v. Scott, 13 Ark. 644 ; Watt v. Brookover, 35 W. Va. 323, 13 S. E. 1007, 29 Am. St. Rep. 811; nor to satisfy a judg ment for a less sum than is due ; Peters v. Lawson, 66 Tex. 336, 17 S. W. 734; and that in money only ; Nolan v. Jackson, 16 Ill. 272; Everett v. Sherfey, 1 la. 360; nor to release sureties ; Givens v. Briscoe, 3 J. J. Marsh. (Ky.) 532 ; Varnum v. Bellamy, 4 McLean 84, Fed. Cas. No. 16,886 ; nor to enter a retraxit; Lambert v. Sandford, 2 Blackf. (Ind.) 137, 18 Am. Dec. 149 ; nor to act for the legal representatives of his de ceased client; Wood v. Hopkins, 3 N. J. L. 689; and ordinarily one retained to collect a debt has no right to compromise it; Martin v. Cap. Ins. Co., 85 Ia. 643, 52 N. W. 534; Willard v. Gas Fixture Co., 47 Mo. App. 1; Brockley v. Brockley, 122 Pa. 1, 15 Atl. 646. An attorney's authority to appear for his cli ent ceases after the entry of final judgment, except that he may take the necessary steps to collect the judgment ; Cruikshank v. Good win, 66 Hun 626, 20 N. Y. Supp. 757.
There is an implied contract on the part of an attorney who has been retained, that he will use due diligence in the course of le gal proceedings ; but it is not an undertaking to recover a judgment ; Hall v. Kerr, Wright (Ohio) 446. See 7 C. & P. 289 ; Babbitt v. Bumpus, 73 Mich. 331. 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 judg ment or his client's interest ; but the con cealment of the fact does not necessarily im ply fraud; Williams v. Reed, 3 Mas. 405, Fed. 'Cas. No. 17,733. See Weeks, Att. at Law.