RESCUE, crim. law. A forcible setting at liberty against law of a person duly arrested. Co. Litt. 160; 1 Chitty's Cr, Law, *62; 1 Russ. on Cr. 383. The person who rescues the prisoner is called the rescuer.
2. If the rescued prisoner were arrested for felony, then the rescuer is a felon; if for treason, a traitor; and if for a trespass, he is liable to a fine as if he had committed the original offence. Hawk. B. 5, c. 21. If the principal be acquitted, the rescuer may nevertheless be fined for the misdemeanor in the obstruction and contempt of public justice. 1 Hale, 598.
3. In order to render the rescuer criminal, it is necessary he should have knowledge that the person whom he sets at liberty has been apprehended for a criminal offence, if he is in the custody of a private person; but if he be under the care of a public officer, then he is to take notice of it at his peril. 1 Hale, 606.
4. In another sense, rescue is the taking away and setting at liberty, against law, a distress taken for rent, or services, or damage feasant. Bac. Ab. Rescue, A.
5. For the law of the United States on this subject, vide Ing. Dig. 150. Vide, generally, 19 Vin. Ab. 94.
RESCUE, mar. war. The retaking by a party captured of a prize made by the enemy. There is still another kind of rescue which partake's of the nature of a recapture; it occurs when the weaker party before he is overpowered, obtains relief from the arrival of fresh succors, and is thus preserved from the force of the enemy. 1 Rob. Rep. 224; 1 Rob. Rep. 271.
2. Rescue differs from recapture. (q. v.) The rescuers do not by the rescue become owners of the property, as if it had been a new prize - but the property is restored to the original owners by the right of postliminium. (q. v.)
RESCUSSOR. The party making a rescue, is sometimes so called, but more properly he is a rescuer.
RESERVATION, contracts. That part of a deed or other instrument which reserves a thing not in esse at the time of the grant, but newly created. 2 Hill. Ab. 359; 3 Pick. R. 272; It differs from an exception. (q. v.) See 4 Verm. 622; Brayt. R. 230; 9 John. R. 73; 20 John, R. 87; 3 Ridg. P. C. 402; Co. Litt. 43 a; 2 Tho Co. Litt. 412
RESET OF THEFT, Scotch law. The receiving and keeping of stolen goods knowing them to be stolen, with a design of feloniously retaining them from the real owner. Alis. Pr. Cr. 328.
RESETTER, Scotch law. A receiver of stolen goods, knowing them to have been stolen.
RESIANCE. A man's residence or permanent abode. Such a man is called a resiant. Kitch. 33.
RESIDENCE. The place of one's domicil. (q. v.) There is a difference between a man's residence and his domicil. He may have his domicil in Philadelphia, and still he may have a residence in New York; for although a man can have but one domicil, he may have several residences. A residence is generally tran-sient in its nature, it becomes a domicil when it is taken up animo manendi. Roberts; Ecc. R. 75.
2. Residence is prima facie evidence of national character, but this may at all times be explained. When it is for a special purpose and transient in its nature, it does not destroy the national character.
3. In some cases the law requires that the residence of an officer shall be in the district in which he is required to exercise his functions. Fixing his residence elsewhere without an intention of returning, would violate such law. Vide the cases cited under the article Domicil; Place of residence.
RESIDENT, international law. A minister, according to diplomatic language, of a third order, less in dignity than an ambassador, or an envoy. This term formerly related only to the continuance of the minister's stay, but now it is confined to ministers of this class.
2. The resident does not represent the prince's person in his dignity, but only his affairs. His representation is in reality of the same nature as that of the envoy; hence he is often termed, as well as the envoy, a minister of the second order, thus distinguishing only two classes of public ministers, the former consisting of ambassadors who are invested with the representative character in preeminence, the latter comprising all other ministers, who do not possess that exalted character. This is the most necessary distinction, and indeed the only essential one. Vattel liv. 4, c. 6, 73.
RESIDENT, persons. A person coming into a place with intention to establish his domicil or permanent residence, and who in consequence actually remains there. Time is not so essential as the intent, executed by making or beginning an actual establishment, though it be abandoned in a longer, or shorter period. See 6 Hall's Law Journ. 68; 3 Hagg. Eccl. R. 373; 20 John. 211 2 Pet. Ad. R. 450; 2 Scamm. R. 377.
RESIDUARY LEGATEE. He to whom the residuum of the estate is devised or bequeathed by will. Roper on Leg. Index, h. t.; Powell Mortg. Index, h. t.; 8 Com. Dig. 444.
RESIDUE. That which remains of something after taking away a part of it; as, the residue of an estate, which is what has not been particularly devised by will.
2. A will bequeathing the general residue of personal property, passes to the residuary legatee everything not otherwise effectually disposed of and it makes no difference whether a legacy falls into the estate by lapse, or as void at law, the next of kin is equally excluded. 15 Ves. 416; 2 Mer. 392. Vide 7 Ves. 391; 4 Bro. C. C. 55; 1 Bro. C. C. 589; Rop. on Leg. Index, h. t.; Worth. on Wills, 454.
RESIGNATION. The act of an officer by which he declines his office, and renounces the further right to use it. It differs from abdication. (q. v.)
2. As offices are held at the will of both parties, if the resignation of a officer be not accepted, he remains in office. 4 Dev. R. 1.
RESIGNEE. One in favor of whom a resignation is made. 1 Bell's Com. 125 n.
RESISTANCE. The opposition of force to force.
2. Resistance is either lawful or unlawful. 1. It is lawful to resist one who is in the act of committing a felony or other crime, or who maliciously endeavors to commit such felony or crime. See self defence. And a man may oppose force to force against one who endeavors to make an arrest, or to enter his house without lawful authority for the purpose; or, if in certain cases he abuse such authority, and do more than he was authorized to do; or if it turn out in the result he has no right to enter, then the party about to be imprisoned, or whose house is about to be illegally entered, may resist the illegal imprisonment or entry by self-defence, not using any dangerous weapons, and may escape, be rescued, or even break prison, and others may assist him in so doing. 5 Taunt. 765; 1 B. & Adol, 166; 1 East, P. C. 295; 5 East, 304; 1 Chit. Pr. 634. See Regular and Irregular Process.
3. - 2. Resistance is unlawful when the persons having a lawful authority to arrest, apprehend, or imprison, or otherwise to advance or execute the public justice of the country, either civil or criminal, and using the proper means for that purpose, are resisted in so doing; and if the party guilty of such resistance, or others assisting him, be killed in the struggle, such homicide is justifiable; while on the other hand, if the officer be killed, it will, at common law, be murder in those who resist. Fost. 270; 1 Hale, 457; 1 East, P. C. 305.
RESOLUTION. A solemn judgment or decision of a court. This word is frequently used in this sense, in Coke and some of the more ancient reporters. It also signifies an agreement to a law or other thing adopted by a legislature or popular assembly. Vide Dict. de Jurisp. h. t.
RESOLUTION, Civil law. The act by which a contract which existed and was good, is rendered null.
2. Resolution differs essentially from rescission. The former presupposes the contract to have been valid, and it is owing to a cause posterior to the agreement that the resolution takes place; while rescission, on the contrary, supposes that some vice or defect annulled the contract from the beginning. Resolution may be by consent of the parties or by the decision of a competent tribunal; rescission must always be by the judgment of a court. 7 Troplong, de la Vente, n. 689; 7 Toull. 551; Dall. Dict. h. t.
RESOLUTORY CONDITION. On which has for its object, when accomplished, the revocation of the principal obligation; for example, I will sell you my crop of cotton, if my ship America does not arrive in the United States, within six months. My ship arrives in one month, my contract with you is revoked. 1 Bouv. Inst. n. 764.
RESORT. The authority or jurisdiction of a court. The supreme court of the United States is a court of the last resort.
RESPECTABLE WITNESS. One who is competent to testify in a court of justice. To pass lands in Alabama, a will must be attested by three or more respectable witnesses. See Attesting witness; Competent witness; Credible witness and Witness.
RESPIRATION, Med. jur. Breathing, which consists of the drawing into, inhaling, or more technically, inspiring, atmospheric air into the lungs, and then: forcing out, expelling, or technically expiring, from the lungs the air therein. Chit. Med. Jur. 92 and 416, note n.
RESPITE, contracts, civil law. An act by which a debtor who is unable to satisfy his debts at the moment, transacts (i. e. compromises) with his creditors, and obtains from them time or delay for the payment of the sums which he owes to them. Louis. Code, 3051.
2. The respite is either voluntary or forced; it is voluntary when all the creditors consent to the proposal, which the debtor makes to pay in a limited time the whole or a part of his debt; it is forced when a part of the credi-tors refuse to accept the debtor's proposal, and when the latter is obliged to compel them by judicial authority, to consent to what the others have deter-mined in the cases directed by law. Id. 3052; Poth. Proced. Civ. 5eme partie, ch. 3.
3. In Pennsylvania, there is a provision in the insolvent act of June 16, 1836, s. 41, somewhat similar to involuntary respite. It is enacted, that whenever a majority in number and value of the creditors of any insolvent, as aforesaid, residing within the United States, or having a known attorney therein, shall consent in writing thereto, it shall be lawful for the court by whom such insolvent shall have been discharged, upon the application of such debtor, and notice given thereof, in the manner hereinbefore provided for giving notice of his original petition, to make an order that the estate and effects which such insolvent may afterwards acquire, shall be exempted for the term of seven years thereafter from execution, for any debt contracted, or cause of action existing previously to such discharge, and if after such order and consent, any execution shall be issued for such debt or cause of action, it sliall be the duty, of any judge of the court from which such execution issued, to set aside the same with costs.
4. Respite also signifies a delay, forbearance or continuation of time.
RESPITE, crim. law. A suspension of a sentence, which is to be executed at a future time. It differs from a pardon, which is in abolition of the crime. See Abolition; Pardon.
RESPONDEAT OUSTER. The name of a judgment when an issue in law, arising on a dilatory plea, has been decided for the plaintiff, that the defendant answer over. See 1 Meigs, 122; 1 Ala. R. 442; 3 Ala. R. 278; 3 Pike, 339; 4 Pike, 445; 4 Misso. R. 366; 5 Blackf. 167; 5 Metc. 88; 1 Gilm. R. 395 16 Conn. 436; 24 Pick. 49. Vide Judgment of Respondeat Ouster.
RESPONDENT, practice. The party who makes an answer to a bill or other proceeding in chancery. In the civil law, this term signifies one who answers or is security for another; a fidejussor. Dig. 2, 8, 6.
RESPONDENTIA, maritime law. A loan of money on maritime interest, on goods laden on board of a ship, which, in the course of the voyage must, from their nature, be sold or exchanged, upon this condition, that if the goods should be lost in the course of the voyage, by any of the perils enumerated in the contract, the lender shall lose his money; if not, that the borrower shall pay him the sum borrowed, with the interest agreed upon,
2. The contract is called respondentia, because the money is lent on the personal responsibility of the borrower. It differs principally from bottomry, in the following circumstances: bottomry is a loan on the ship; respondentia is a loan upon the goods. The money is to be repaid to the lender, with mari-time interest, upon the arrival of the ship, in the one case and of the goods, in the other. In all other respects the contracts are nearly the same, and are governed by the same principles. In the former, the ship and tackle, being hypothecated, are liable, as well as the person of the borrower; in the latter, the lender has, in general, only the personal security of the borrower. Marsh. Ins. B. 2, c. 1, p. 734. See Lex Mer. Amer. 354; Com. Dig. Merchant, E 4; 1 Fonb. Eq. 247, n. I.; Id. 252, n. o.; 2 Bl. Com. 457; Park. Ins. ch. 21; Wesk. Ins. 44; Beawes' Lex. Mex. 143; 3 Chitty's Com. Law, 445 to 536; Bac. Abr. Merchant and Merchandise, K; Bottomry.
RESPONDERE NON DEBET. The prayer of a plea where the defendant insists that he ought not to answer, as when he claims a privilege; for example, as being a member of congress, or a foreign amhassador. 1 Chit. Pl. *433.
RESPONSA PRUDENTUM, civil law. Opinions given by Roman lawyers. Before the time of Augustus, every lawyer was authorized de jure, to answer questions put to him, and all such answers, response prudentum had equal authority, which had not the force of law, but the opinion of a lawyer. Augustus was the first prince who gave to certain distinguished jurisconsults the particular privi-lege of answering in his name; and from that period their answers required greater authority. Adrian determined in a more precise manner the degree of authority which these answers should have, by enacting that the opinions of such authorized jurisconsults, when unanimously given, should have the force of law (legis vicenz,) and should be followed by the judges; and that when they were divided, the judge was allowed to adopt that which to him appeared the most equitable.
2. The opinions of other lawyers held the same place they had before, they were considered merely as the opinions of learned men. Mackel. Man. Intro. 43; Mackel. Hist. du Dr. Rom. SSSS 40, 49; Hugo, Hist. du Dr. Rom. 313; Inst. 1, 2, 8,; Institutes Expliquees, n. 39.
RESPONSALIS, old Eng. law., One who appeared for another in court. Fleta, lib. 6, c., 21. In the ecclesiastical law, this name is sometimes given to a proctor.
RESPONSIBILITY. The obligation to answer for an act done, and to repair any injury it may have caused.
2. This obligation arises without any contract, either on the part of the party bound to repair the injury, or of the party injured. The law gives to the person who has suffered loss, a compensation in damages.
3. it is a general rule that no one is answerable for the acts of another unless he has, by some act of his own, concurred in them. But when he has sanctioned those acts, either explicitly or by implication, he is responsible. An innkeeper in general, civilly liable for the acts of his servants towards his guests, for anything done in their capacity of servants. The owner of a carriage is also, civilly responsible to a passenger for any injury done by the driver as such. See Driver.
4. There are cases where persons are made civilly responsible for the acts of others by particular laws and statutory provisions, when they have not done anything by which they might be considered as participating in such acts. The responsibility which the hundred (q. v.) in England formerly incurred to make good any robbery committed within its precincts, may be mentioned as an instance. A somewhat similar liability is incurred now in some places in this country by a county, when property has been destroyed by a mob.
5. Penal responsibility is always personal, and no one can be punished for the commission of a crime but the person who has committed it or his accomplice. Vide Damages; Injury; Loss.
RESTITUTION, maritime law. The placing back or restoring articles which have been lost by jettison; this is done when the remainder of the cargo has been saved at the general charge of the owners of the cargo; but when the remainder of the goods are afterwards lost, there is not any restitution. Stev. on Av. 1, c. 1, s. 1, art. 1, ii., 8. Vide Recompense.
RESTITUTION, practice. The return of something to the owner of it, or to the person entitled to it.
2. After property has been taken into execution, and the judgment has been reversed or set aside, the party against whom the execution was sued out shall have restitution, and this is enforced by a writ of restitution. Cro. Jac. 698; 4 Mod. 161. When the thing levied upon under an execution has not been sold, the thing itself shall be restored; when it has been sold, the price for which it is sold is to be restored. Roll. Ab. 778; Bac. Ab. Execution, Q; 1 Al. & S. 425.
3. The phrase restitution of conjugal rights frequently occurs in the ecclesiastical courts. A suit may there be brought for this purpose whenever either the hushand or wife is guilty of the injury of subtraction, or lives separate from the other without sufficient reason; by which the party injured may compel the other to return to cohabitation. 1 Bl. Com. 94; 1 Addams, R. 305; 3 Hagg. Eccl. R. 619.
TO RESTORE. To return what has been unjustly taken; to place the owner of a thing in the state in which he formerly was. By restitution is understood not only the return of the thing itself, but all its accessories. It is to return the thing and its fruits. Dig. 60, 16, 35, 75 et 246, 1.
RESTRAINING. Narrowing down, making less extensive; as, a restraining statute, by which the common law is narrowed down or made less extensive in its operation.
RESTRAINING POWERS. A term used in equity. When the donor of a power, who is the owner of the estate, imposes certain restrictions by the terms of the powers, these restrictions are called restraining powers.
RESTRAINT. Something which prevents us from doing what we would desire to do.
2. Restraint is lawful and unlawful. It is lawful when its object is to prevent the violation of the law, or the rights of others. It is unlawful when it is used to prevent others from doing a lawful act; for example, when one binds himself not to trade generally; but an agreement not to trade in a particular place is lawful. A legacy given in restraint of marriage, or on condition that the legatee shall not marry, is good, and the condition alone is void. The Roman civil law agrees with ours in this respect; a legacy given on condition that the legatee shall not marry is void. Clef des Lois Rom. mot Passion. See Condition; Limitation.
RESTRICTIVE INDORSEMENT, contracts. One which confines the negotiability of a promissory note or bill of exchange, by using express words to that effect, as by indorsing it "payable to A,B only." 1 Wash. C. C. 512; 2 Murph. 138; 1 Bouv. Inst. n. 1138.
RESULTING TRUSTS, estates. Resulting, implied or constructive trusts, are those which arise in cases where it would be contrary to the principles of equity that be in whom the property becomes vested, should hold it otherwise than as a trustee. 2 Atk. 150.
2. As an illustration of this description of a resulting trust, may be mentioned the case of a contract made for the purchase of a real estate; on the completion of the contract, a trust immediately results to the purchaser, and the vendor becomes a trustee for him till the conveyance of the legal estate is made. Again, when an estate is purchased in the name of one person, and the purchase money is paid by another, there is a resulting trust in favor of the person who gave or paid the consideration. Willis on Tr. 55; 1 Cruise, Dig. tit. 12, s. 40, 41; Ch. Ca. 39; 9 Mod. 78; 7 Ves. 725; 3 Hen. & Munf. 367; 1 Supp. to Ves. jr. 11; Pow. Mortg. Index, h. t.; 2 John. Ch. R. 409, 450; 3 Bibb, R. 15, 506; 4 Munf. R. 222; 1 John. Ch. Rep. 450, 582; Sugd. on Vend. ch. 15, s. 2 Cox, Ch. Rep. 93; Bac. Ab. Trusts, C; Bouv. last. Index, h. t. Vide Trusts; Use.
RESULTING USE, estates. One which having been limited by deed, expires or cannot vest; it then returns back to him who raised it, after such expiration, or during such impossibility.
2. When the legal seisin and possession of land is transferred by any common law conveyance, and no use is expressly declared, nor any consideration nor evidence of intent to direct the use, such use shall result back to the original owner of the estate; for in such case, it cannot be supposed that it was intended to give away the estate. 2 Bl. Com. 335; Cruise, Dig. t. 11, c. 4, s. 20, et seq.; Bac. Tracts, Read. on Stat. of Use's, 351; Co. Litt. 23, a.; Id. 271, a; 2 Binn. R. 387; 3 John. R. 396.
RESUMPTION. To reassume; to promise again; as, the resumption of payment of specie by the banks is general. It also signifies to take things back; as the government has resumed the possession of all the lands which have not been paid for according to the requisitions of the law, and the contract of the purchasers. Cow. Int. h. t.
RETAIL. To sell by retail, is to sell by small parcels, and not in the gross. 5 N. S. 279.
RETAILER OF MERCHANDISE. One who deals in merchandise by selling it in smaller quantities than he buys, generally with a view to profit.
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 authorized 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 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. 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 proceedings, but it is not an undertaking to recover a judgment. Wright, R. 446. 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 Mason's R. 305; 2 Greenl. Ev. 139.
RETAINER. The act of withholding what one has in one's own hands by virtue of some right.
2. An executor or administrator 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 creditor 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.
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 pro 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 obligee is also his executor.
8. - 1. Where the deceased was sole obligor, his executor may clearly retain.
9. - 2. Where two are jointly 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 fully 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 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. 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 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; 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 breach of a pecuniary 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 creditors 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 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. 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 Jersey; 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 solvent an executor may of course retain for the whole of his debt, with interest.
RETAINER, 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.
2. "The effect of a retainer to prosecute or defend a suit," says Professor Greenleaf; Ev. vol. ii. 141; "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."
RETAINING FEE. A fee given to counsel on being consulted in order to insure his future services.
RETAKING. The taking one's goods, wife, child, &c., from another, who with-out right has taken possession thereof. Vide Recaption; Rescue.