clare bolton plaintiff thomas canham executor of Richard snow defendant in  debt for l in the debit to hold off the plaintiff declare upon a lease make by  he to the testator of two message in leadenhallstreet London for one and  twenty year under the yearly rend of one hundred and sixty pound to be pay at  the four usual quarter day by equal portion that the testator die and the  defendant his executor enter and be possess and for one year and half rend  incur after the death of the testator and end at Christmas bring his action  the defendant as to l parcel for one quarter end at mich plead nil debet and  issue thereupon and as to the residue plead that after the testator death he  have diverse good of the testator to administer but that before the two  hundred pound residue or any part thereof become due videlicet october be full  administer and then have not any good pollexfen to administer and that the two  message in form price surrender fuer minor valour one year old how reddil  predict such ut carry in front reserval videlicet eaden messuagia juer one  year old valor l lantummodo lion greater number and further that before any  part of the residue of the rend become due videlicet october be give notice to  the plaintiff of the premise and offer to surrender but that the plaintiff  refuse to accept of the surrender and further that be then wave the possession  and aver that at any time after the wave the possession he have not have any  good of the testator to administer the plaintiff reply that it be true that  the defendant offer to surrender but say that at the time of the offer l  parcel of the l for a quarter of a year end at mich after the testator death  be and yet be arrear and unpay and that at the time of the offer to surrender  the defendant do not offer or tender to pay these arrear whereupon the  defendant demurrer general in this case there be diverse point point if lessee  for year render rend more than the value of the land make his executor and die  whether the executor not have asset to pay all the debt and also this overplus  of rend can accept the executorship and not wave the term I conceive he can  for the executorship be entire and be can divide it he can take upon he to be  executor as to part of his estate suppose as to the personal chattel or the  estate in such a county and wave the rest he must take all or leave all  pollexfen and for the authority against I I give this account h b that if the  executor wave the term he shall not be charge with the rend doctor and student  as I conceive be ground upon this opinion of Ascues for be first put a case of  baron and feme and the femes wave and from thence pollexfen er p infer the  case of the executor wave much after the manner askew do before he Br waiver  be the abridgment of the opinion of doctor and student maul and Cacisser car  be but a peradventure he may wave Lord rich and frank Bulstrode be but ail  opinion that he may wave against these opinion be house and Webster Yelverton  that a executor can wave and the book of the h there deny to be law Pawl and  moody James b r that be can wave Rale and Jocelyn style car it be the opinion  of my Lord roll that a executor can wave Vancroots case style the like opinion  of roll so that upon the whole matter I conceive he can wave at all point but  if he can wave yet whether he can wave after he have once accept and enter  whereby he have make himself assignee pollexfen the book that be of opinion  that he may wave seem likewise to say that be must wave at first doctor and  student if the executor have not good sufficient of the testator to pay the  rend to the end of the term I think if he relinquish the occupation he may by  special plead discharge himself from the rend and lease if he do not he may  pay of his own good this book direct the waver if no asset to pay the rend to  the end of the term which intend that he shall wave at first and not stay till  his asset be spend and then wave as in this case in maul and Cacissers case it  be plead that after the testator death the executor wave the possession and  never intermeddle in my Lord rich and francks case Fleming and crook be of  opinion that at first the executor may refuse the occupation and wave but if  be once agree by take the profit he shall be charge as assignee de good not  common with others and if the executor shall happen to be overcharge he may  thank himself he may have wave the executorship he be presume to be conusant  of the estate but on the other side the mischief will be great if he may fling  up when he have no asset and when the value be reduce to less than the rend  for both these thing be in his own power by ill husbandry to lessen the value  and by not receive debt or otherwise by ill management he may be able to avoid  the lease and so contrive that afterward asset shall come and then what remedy  point if he can wave yet he can wave in the middle of a quarter for then  nothing will be pay for the time pass no more than by tenant at will pollexfen  point if he can wave yet he can wave without pay the arrear for thereby be  take away the plaintiff remedy and therefore the defendant shall not wave till  the arrear pay point if he can wave whether as this case be a action in the  debet and to hold off lie against the defendant be have plead that the rend be  more than the value suppose that be well plead that debt for rend lie against  the executor in the debet and detinel where the rend be not more than the  value of the land appear clear by a multitude of case since hargrave case in  king James time Lord rich his case car James pawle and moody James maul and  Cacisser car in king Charles the first his time Rale and Jocelyn car style  Royston and he be car style and constant practice ever since but if the  plaintiff will elect to bring it in the to hold off he may and it be good  adjudge in smith and Norfolk case car but whether the executor ought to be  charge where the rend be more than the value of the land in the debet and  debinet or de good not common with others for the whole rend there be no  authority or print book that have distinguish that I know of but it be true it  have always be look upon as a hard case and a case of extremity that ail  executor shall be charge de good not common with others where the rend be more  than the land pollexfen er p pollexfen in answer to this there be abundance of  particular case that be very hard but that do not alter the law it be his own  fault he may have renounce the executorship and then he have not be charge but  if he will take upon he the executorship the law will presume that he have  consideration of what he have undertake that be know all the debt that be owe  and all the consequence but if the law be as they will have it the consequence  be not easy foresee but the hardship will turn upon the landlord suppose there  be seven year rend arrear in the life of the testator and no asset and the  land but of equal value to the rend how shall the executor avoid have this  rend levy upon he by distress if in our case he shall not be liable to a  action of debt yet there be no doubt but he be liable to the whole rend by  distress especial since the new act and which be worse a stranger cattle shall  be liable the land be security for the rend and the arrear in who hand soever  it come and it will be strange if by distress he shall be liable to pay the  whole and yet no action of debt shall lie for the whole next the overplus be  due to the landlord in this case by specialty be a rend out of land not only  debt by specialty but debt by simplecontract must be pay out of the asset and  it will be no plea for the executor to say that the rend be more than the  value and that he have not asset ultra what will satisfy the rend the landlord  will be in a ill case if this shall be a good plea for the rend day not be yet  incur all the present debt and perhaps the legacy will thereby be stop from  payment and for how long be yet to be determine pollexfen beside at what time  must the value of the land be take at the time of the death of the testator or  at any time after if at the time of the testator death the value perhaps may  be more one year and less another as i wood c may afterward increase if  afterward negligence or ill husbandry or accident have make it so shall the  landlord rend depend hereupon these matter as every new point will deserve  consideration certainty be the mother of quiet which be the end of the law and  though it fall out that some particular case may light very hard yet better  that mischief than a inconvenience but beside if in this case no action lie  against the executor in the debet and debinet it will be a easy matter to  cheat the landlord of remedy by action of debet for all his rend suppose this  case of a house or something where distress of considerable value can be bad  as if a lease for year be make of a house worth l per annum render l rend it  become for want of repair to be worth l and no more then the lessee make his  executor and die and leaves asset to the value of a l and owe the executor l  the executor make a lease of the term for year for l the rend be arrear no  distress to be get what remedy if you can sue in the debet and to hold off in  the to hold off you have no remedy the executor have no asset but the  reversion for a week or a month so that the execution de good testator come to  nothing and the landlord have not only lose the overplus but the whole rend  and yet the landlord be in no fault nor yet can he help himself therefore if  no action in the debet and debinet lie there be a plain way open to cheat the  landlord of his whole rend pollexfen if it shall be admit that in such case  where the rend be more than the value of the land in a action in the debet and  to hold off the defendant shall not be charge for the whole rend yet he ought  to be charge for so much as the land be worth this I around upon what have be  say that if a action in the debet and to hold off lie where the land be of as  much value as the rend it ought then to lie for as much of the rend as the  value of the land amount unto in the debet and to hold off then if so their  plea be plead as a bar to the whole rend whereas it be only a bar to part  videlicet to the l over and beside the value and as for the l by his own show  we ought to recover for by his own show he be Chargeable in the debet and to  hold off for that in debt for rend the defendant plead a eviction of part of  the land and set pollexfen er p out the value this be only a bar to part of  the rend and if he plead nothing to the rest judgement must be against he for  the whole the plea as to the matter be too short it be that the two message in  femme prediction surrender Juer those inferior in rank one year old valor how  To give back praedicl such ut prefer riservat videlicet eaden messuagia fuer  one year old valor l tan tummodo non greater number it mention no time when  before before the death of the testator or since or since the action bring  perhaps it many year ago before they be build or perhaps since the action  bring if a man shall bring trespass quare clausumfregit and the defendant  shall plead that the close to be son frank tenement without say at the time of  the trespass suppose it will be nought pollexfen and they have demurrer if  they have make the first fault judgement must be give against they in this  case the court be of opinion that if the matter of value less than the rend  have be only plead perhaps it may have be a bar in one action in the debet and  to hold off but mention no authority except the opinion of roll in the say  case before of rail and Jocelyn but that he can not wave and the waver be of  the substance of his plea which be answer by the replication to which there be  a demurrer the demurrer be without cause and therefore judgement for the  plaintiff