case Marriott against thompson Qure whether a widow as administratrix of her  decease husband can retain on a bind give to her dumb sola condition to leave  her so much money on his death if the marriage take effect debt on a bind  against the defendant as executrix of her husband she plead that her husband  before marriage be bind in a obligation that if the marriage take effect and  she survive he he will leave her four hundred pound otherwise the bind to be  in force that be die without leave her any such sum and make her his executrix  and that she retain for the sum in the bind and that she have no asset ultra  modern er p it be object that she can plead a retainer on a bind give to  another person because the reason of retainer be for want of a person against  who to bring the action draper sergeant contra the reason of retainer be  because the same hand be to pay and receive and such retainer be consider as a  privilege and as a payment as roll Abr pl and grey v Driscall Trinity term in  the ten year of George the second adjudge that a retainer may be give in  evidence you a plene to manage because the law change the property of so much  of the good and as the manner in which the four hundred pound be to be pay be  not set forth it must be by executor and in hob Noy it be lie down that a  executor may retain and the testator by make her executrix seem to have intend  to prevent the forfeiture of the bind and if she suffer the bind to be forfeit  it may be a devastavit in vent modern page and Denton justice a executor can  retain for the penalty of a bind because the plaintiff may reply to the plea  of the executor that there be but so much due and although it be object that  the penalty belong to the obligee and the wife have no remedy but in equity  yet it be lie down in dyer more and that a executor who have no right of  action may yet retain as where the executor pay money to the value of the good  and the case of Roskelly v Godolphin in raym show and skin be in point except  the word to leave her and to pay her make a different report I allow retainer  may be give in evidence but it must be a debt which subsist and be due to the  executor will chief justice I take it that the method be that the obligee  shall bring a action and the executrix confess judgement to he and he shall  assign a judgement to her and then she may plead retainer equity be against  the retainer for in chancery they allow neither merger nor retainer but both  be at law on the foot of the rule of retainer that she may retain where she  can have a action as where she satisfy out of her own good and if she may do  this in the case of a stranger why not in her own and more it be so to do the  next enquiry be if she have plead as she ought to do for it shall be plead  that it be in order to avoid the penalty of the bind but she have plead that  no part of the bind be pay which contradict her retainer Adjournatur