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
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
8. - 1. Where the deceased was sole obligor, his executor may clearly
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
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.
RETALIATION. The act by which a nation or individual treats another in
the same manner that the latter has treated them. For example, if a nation
should lay a veryheavy tariff on American goods, the United States would be
justified in return in laying heavy duties on the manufactures and productions
of such country. Vatt. Dr. des Gens, liv. 2, c. 18, §341. Vide Lex talionis.
RETENTION, Scottish law. The right which the possessor of a movable
has, of holding the same until he shall be satisfied for his claim either
against such movable or the owner of it; a lien.
2. The right of retention is of two kinds, namely, special or general. 1.
Special retention is the right of withholding or retaining property of goods
which are in one's possession under a contract, till indemnified for the labor
or money expended on them. 2. General retention is the right to withhold or
detain the property of another, in respect of any debt which happens to be due
by the proprietor to the person who has the custody; or for a general balance of
accounts arising on a particular train of employment. 2 Bell's Com. 90, 91, 5th
ed. Vide Lien.
RETORNO HABENDO. The name of a writ issued to compel a party to return
property which has been adjudged to the other in an action of replevin. Vide
Writ pro retorno habendo.
RETORSION, war. The name of the act employed by a government to impose
the same hard treatment on the citizens or subjects of a state, that the latter
has used towards the citizens or subjects of the former, for the purpose of
obtaining the removal of obnoxious measures. Vattel, liv. 2, c. 18, §341; De
Martens, Precis, liv. 8, c. 2, §254; Kluber, Droit dos Gens, s. 2 c. 1, §234;
Mann. Comm. 105.
2. Retorsion signifies also the act by which an individual returns to his
adversary evil for evil; as, if Peter call Paul thief, and Paul says you are a
TO RETRACT. To withdraw a proposition or offer before it has been
2. This the party making it has a right to do is long as it has not been
accepted; for no principle of law or equity can, under these circumstances,
require him to persevere in it.
3. The retraction may be express, as when notice is given that the offer is
withdrawn; or, tacit as by the death of the offering party, or his inability to
complete the contract; for then the consent of one of the parties has been
destroyed, before the other has acquired any existence; there can therefore be
no agreement. 16 Toull. 55.
4. After pleading guilty, a defendant will, in certain cases where he has
entered that plea by mistake or in consequence of some error, be allowed to
retract it. But where a prisoner pleaded guilty to a charge of larceny, and
sentence has been passed upon him, he will not be allowed to retract his plea,
and plead not guilty. 9 C. & P. 346; S. C. 38 E. C. L. R. 146; Dig. 12, 4,
RETRAXIT, practice. The act by which a plaintiff withdraws his. suit;
it is so called from the fact that this was the principal word used when the law
entries were in Latin.
2. A retraxit differs from a nonsuit, the former being the act of the
plain-tiff himself, for it cannot even be entered by attorney; 8 Co. 58; 3
Salk.245; 8 P. S. R. 157, 163; and it must be after declaration filed; 3 Leon.
47; 8 P. S. R. 163; while the latter occurs in consequence of the neglect merely
of the plaintiff. A retraxit also differs from a nolle prosequi. (q. v.) The
effect of a retraxit is a bar to all actions of a like or a similar nature; Bac.
Ab. Nonsuit, A; a nolle prosequi is not a bar even in a criminal prosecution. 2
Mass. R. 172. Vide 2 Sell. Pr. 338; Bac. Abr. Nonsuit; Com. Dig. Pleader, X 2.
Vide article Judgment of retraxit.
RETRIBUTION. 1. That which is given to another to recompense him for
what has been received from him; as a rent for the hire of a house. 2. A salary
paid to a person for his services. 3. The distribution of rewards and
RETROCESSION, civil law. When the assignee of heritable rights conveys
his rights back to the cedent, it is called a retrocession. Erskine, Prin. B. 3,
t. 5, n. 1; Dict. do Jur. h. t.
RETROSPECTIVE. Looking backwards.
2. This word is usually applied to those acts of the legislature, which are
made to operate upon some subject, contract or crime which existed before the
passage of the acts, and they are therefore called retrorospective laws. These
laws are generally unjust and are, to a certain extent, forbidden by that
article in the constitution of the United States, which prohibits the passage of
ex post facto laws or laws impairing contracts.
3. The right to pass retrospective laws, with the exceptions above mentioned,
exists in the several states, according to their own constitutions, and become
obligatory if not prohibited by the latter. 4 S. & R. 364; 3 Dall. R. 396; 1
Bay, R. 179; 7 John. R. 477; vide 4 S. & R. 403; 1 Binn. R. 601; 3 S. &
R. 169; 2 Cranch. R. 272 2 Pet. 414; 8 Pet. 110; 11 Pet. 420; 1 Bald. R. 74; 5
Penn. St. R. 149. 4. An instance may be found in the laws of Connecticut. In
1795, the legislature passed a resolve, setting aside a decree of a court of
probate disapproving of a will and granted a new hearing; it was held that the
resolve not being against any constitutional principle in that state, was valid.
3 Dall. 386. And in Pennsylvania a judgment was opened by the act of April 1,
1837, which was holden by the supreme court to be constitutional. 2 Watts &
5. Laws should never be considered as applying to cases which arose
previously to their passage, unless the legislature have clearly declared such
to be their intention. 12 L. R. 352 Vide Barringt. on the Stat. 466, n. 7 John.
R. 477; 1 Kent, Com. 455; Tayl. Civil Law, 168; Code, 1, 14, 7; Bracton, lib. 4,
fo. 228; Story, Cons. §1393; 1 McLean, Rep. 40; 1 Meigs, Rep. 437; 3 Dall. 391;
1 Blackf.R.193; 2 Gallis. R. 139; 1 Yerg. R. 360; 5 Yerg. R. 320; 12 S. & R.
330; and see Ex post facto.
RETURN, contracts, remedies. Persons who are beyond the sea are
exempted from the operation of the statute of limitations of Pennsylvania, and
of other states, till after a certain time has elapsed after their returning. As
to what shall be considered a return, see 14 Mass. 203; 1 Gall. 342; 3 Johns.
263; 3 Wils. 145; 2 Bl. Rep. 723; 3 Littell's Rep. 48; 1 Harr. & Johns. 89,
350; 17 Mass. 180.
RETURN DAY. A day appointed by law when all writs are to be returned
which have issued since the preceding return day. The sheriff is in general not
required to return his writ until the return day. After that period he may be
ruled to make a return.
RETURN OF WRITS, practice. A short account in writing, made by the
sheriff, or other ministerial officer, of the manner in which he has executed a
writ. Steph. on Pl. 24.
2. It is the duty of such officer to return all writs on the return day; on
his neglecting to do so, a rule may be obtained on him to return the writ and,
if he do not obey the rule, he may be attached for contempt. See 19 Vin. Ab.
171; Con]. Dig. Return; 2 Lilly's Abr. 476; Wood. b. 1, c. 7; 1 Penna. R. 497; 1
Rawle, R. 520; 3 Yeates, 17; 3 Yeates, 47; 1 Dall. 439.
REUS, civil law. This word has two different meanings. 1. A party to a
suit, whether plaintiff or defendant; Reus est qui cum altero litem contestatem
habet, sive legit, sive cum eo adum est. 2. A party to a contract; reus credendi
is be to whom something is due, by whatever title it may be; reus debendi is he
who owes, for whatever cause. Poth. Pand. lib. 50, h. t.
REVENDICATION, civil and French law. An action by which a man demands
a thing of which he claims to be owner. It applies to immovables as well as
movables; to corporeal or encorporeal things. Merlin, Repert. h. t.
2. By the civil law, he who has sold goods for cash or on credit may demand
them back from the purchaser, if the purchase-money is not paid according to
contract. The action of revendication is used for this purpose. See an attempt
to introduce the principle of revendication into our law, in 2 Hall's Law
3. Revendication, in another sense, corresponds, very nearly, to the stoppage
in transitu (q. v.) of the common law. It is used in that sense in the Code de
Commerce, art. 577. Revendication, says that article, can take place only when
the goods sold are on the way to their place of destination, whether by land or
water, and before they have been received into the warehouse of the insolvent,
(failli,) or that of his factor or agent, authorized to sell them on account of
the insolvent. See Dig. 14, 4, 15;Dig. 18, 1, 19, 53; Dig. 19, f, 11.