| 词汇 | Retain, Retainer2 |
| 释义 | `1`Retain, Retainer2 `2` "Legal Lexicon": On what claims. 1. As to the priority of the claim. 2. As to its nature. - 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 unpaid 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. He may retain only where he has superior claim, or one of equal degree. 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 forfeited, the administrator paid the debt; it was held he could not retain as a specially creditor because being a party to the bond it became his own debt after having paid the debt, however, he became a simple contract creditor, and might retain it as such. - 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 foretell their amount; such are damages upon torts. But where damages arise from the breach of a pecuniary contract, there is a certain measure for them, and such damages may well be retained. 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. What amount may be retained. 1. By the common law an executor is entitled to retain his debt in preference to all other creditors in an equal degree. This he might do, because he is to be placed in the situation of the most vigilant 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. - 2. Where the estate is solvent an executor may of course retain for the whole of his debt, with interest. 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 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. He may receive payment; may bring a second suit after being non-suited in the first for want of formal proof; may sue a writ of error on the judgment; may discontinue the suit; may restore an action after a non pros; may claim an appeal and bind his client in his name for the prosecution of it; way submit the suit to arbitration; may sue out an alias execution; may receive livery of seisin of land taken by an extent may waive objections to evidence, and enter into stipulation for the admission of facts or conduct of the trial and for release of bail; may waive the right of appeal, review, notice, and the like, and confess judgment. But he has no authority to execute a discharge of a debtor but upon the actual payment of the full amount of the debt, and that in money only; nor to release sureties; nor to enter a retraxit; nor to act for the legal representatives of his deceased client; nor to release a witness. The up front payment a client gives a lawyer to accept a case. The client is paying to "retain" the lawyer's services. --b-- |
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