TO RETAIN, practice. To engage the services of an attorney or counsellor to manage a cause, at which time it is usual to give him a fee, called the re-taining fee. The act by which the attorney is authorized¹ to act in the case is called a retainer.

2. Although it is not indispensable that the retainer should be in writing, unless required by the other side, it is very expedient². 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 insolvent⁴. The retainer should also state whether it be given for a general or a qualified⁶ authority. Vide the form of a retainer in 3 Chit. Pr. 116, note m.

3. 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 legal proceedings⁸, but it is not an undertaking⁹ to recover a judgment¹⁰. Wright, R. 446. An attorney is bound to act with the most scrupulous¹¹ honor, he ought to disclose to his client if he has any adverse¹² retainer which may affect his judgment, or his client's interest; but the concealment¹³ of the fact does not necessarily imply fraud. 3 Mason's R. 305; 2 Greenl. Ev. §139.

RETAINER. The act of withholding¹⁴ what one has in one's own hands by virtue¹⁵ of some right.

2. An executor or administrator¹⁶ is entitled to retain in certain cases, for a debt due to him by the estate of a testator or intestate.

3. It is proposed to inquire, 1. Who may retain. 2. Against whom. 3. On what claims. 4. What amount may be retained.

4. - 1. In inquiring who may retain, it is natural to consider, 1st. Those cases where there is but one executor or administrator. 2d, Where there are several, and one of them only has a claim against the estate of the deceased.

5. - 1. A sole executor may retain in those cases where, if the debt had been due to a stranger, such stranger might have sued the executor and recov-ered judgment; or where the executor might, in the due administration of the estate, have paid the same. 3 Burr. 1380. He may, therefore, retain a debt due to himself; 3 Bl. Com. 18; or to himself in right of another; 3 Burr. 1380; or to another in trust for him; 2 P. Wms. 298: the debt may be retained when administration is committed to another for the use of the creditor¹⁷ who is a lunatic; 3 Bac. Abr. 10, n; Com. Dig. Administration, C or an infant entitled to administration. 4 Ves. 763. An executor may retain if he be the executor of the first testator; but an executor of one of the executors of the first tes-tator, the other executor, being still living, is not an executor of the first testator, and therefore cannot retain. 11 Vin. Abr. 363, An executor may re-tain before he has proved the will, and if he die after having intermeddled with the goods of the testator and before probate, his executor has the same power. 3 P. Wms. 183, and note B.; 11 Vin. Abr. 263.#p#副标题#e#

6. - 2. Where there are several executors, and one has a claim against the estate of the deceased, he may retain with or without the consent of the others; Off. Ex. 33; but where several of them have debts of equal degree they can retain only pro⁷ rata. Bac. Abr. Executors, A 9.

7. - II. Against whom. In those cases, 1. Where the deceased was alone bound. 2. Where he was bound with others. 3. Where the executor of the obligee¹⁸ is also his executor.

8. - 1. Where the deceased was sole obligor, his executor may clearly retain.

9. - 2. Where two are jointly¹⁹ and severally bound, and one of them appoints the obligee his executor; Rob. 10; 2 Lev. 73; Bac. Abr. Executors, A 9; Com. Dig. Administration,, C 1; or the obligee takes out letters of administration to him, the debt is immediately satisfied by way of retainer, if, the executor or administrator have sufficient assets.

10. - 3. If the obligee make the administrator of the obligor his executor, it is a discharge of the debt, if the administrator have assets of the estate of the obligor; but if he have fully²⁰ administered, or if no assests to pay the debt came to his hands, it is no discharge, for there is nothing for him to retain. 8 Serg. & Rawle, 17.

11. - III. On what claims. 1. As to the priority of the claim. 2. As to its nature.

12. - 1. In the payment of the debts of a decedent, the law gives a preference to certain debts over others, an executor cannot, therefore, retain his debt, while there are unpaid²¹ debts of a superior degree, because if he could have brought an action for the recovery of his claim, he could not have re-covered in prejudice of such a creditor. 5 Binn. 167 Bac. Ab. Executors, A 9; Com. Dig. Administration, C 2; 1 Hayw. 413. He may retain only where he has superior claim, or one of equal degree. 3 Bl. Com. 18; 11 Vin. Abr. 261; Com. Dig. Administration, C 1. And in a case where two men were jointly bound in a bond, one as principal, the other as surety, after which the principal died intestate, and the surety took out administration to his estate, the bond being forfeited²², the administrator paid the debt; it was held he could not retain as a specially³ creditor because being a party to the bond it became his own debt; 11 Vin. Abr. 265; Godb. 149, Pl. 194; but see 7 Serg. & Rawle, 9; after having paid the debt, however, he became a simple contract creditor, and might retain it as such. Com. Dig. Administration, C 2, n.

13. - 2. As to the nature of the claim for which an executor may retain, it seems that damages which are in their nature arbitrary cannot be retained, because, till judgment, no man can foretel their amount; such are damages upon torts. But where damages arise from the breach²³ of a pecuniary²⁴ contract, there is a certain measure for them, and such damages may well be retained. 2 Bl. Rep. 965; and see 3 Munf. 222. A debt barred by the act of limitation may be retained, for the executor is not bound to plead the act against others, and it shall, therefore, not operate against him. 1 Madd. Ch. 583.

14. - IV. What amount may be retained. 1. By the common law an executor is entitled to retain his debt in preference to all other creditors²⁵ in an equal degree. 3 Bl. Com. 18; 11 Vin. Abr. 261. This he might do, because he is to be placed in the situation of the most vigilant²⁶ creditor, who by suing and obtaining a judgment might have obtained a preference. Where however, the exec-utor cannot, by bringing suit, obtain a preference, the reason seems changed, and therefore in Pennsylvania, when do such preference can be obtained, the executor is entitled to retain only pro rata with creditors of the same class. 8 Serg. & Rawle, 17; 5 Binn. 167. A creditor cannot obtain a reference by bringing suit and obtaining judgment against executors in the following states, namely: Alabama; 4 Griff. L. R. 582; Connecticut; 3 Griff. L. R. 75; Illinois; Id. 422; Louisiana;, 4 Griff. L. R. 693; Maine; Id. 1004; Maryland; Id. 938; Massachusetts; 3 Griff. L. R. 516 Mississippi; 4 Griff. L. R. 669; Missouri Id. 625; Now Hampshire; 3 Griff. L. R 46; Ohio; Id. 402; Pennsylvania; Id. 262; 8 Serg. & Rawle, 17; 5 Binn. 1 67; Rhode Island; 8 Griff. L. R. 114; South Carolina; 4 Griff. L. R. 860; Vermont; 3 Griff. L. R. 20. Such a preference can be given by the laws of the following states, namely: Delaware; 4 Griff. L. R. 1064; Kentucky; Id. 1135; North Carolina; 3 Griff. L. R. 221; Now Jersey²⁷; 4 Griff. L. R. 1282; New York; 3 Griff. L. R, 141; Tennessee; 4 Griff. L. R. 791; Virginia; 3 Griff. L. R. 360, In Georgia; 3 Griff. L. R. 444; and Indiana.; Id. 467; the matter is doubtful.

15. - 2. Where the estate is solvent⁵ an executor may of course retain for the whole of his debt, with interest.