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![handle is hein.slavery/ssactsengr0957 and id is 1 raw text is: 1 SHOW. X. B. 189. HILARY TERM, 3 WILLIAM AND MARY. IN B. R. 529
the kingdom of England used and approved, there is not or ever was any right of
survivorship between joint merchants; that J. N. before the exhibiting of the bills
died, and made J. D. his executor, who proved the will, and is yet living; that J. D.
died also, and made R. S. his executor, who proved his will, and is yet living, et hoc
paratus est verificare unde petit judicium si action', &c.-The plaintiff demurs, and shews
for cause, quod placit' attingit ad general' exit', incert' est et caret forma.
I argued that the matter of this plea is ill ; that though in point of interest there
is no survivorship, yet in point of remedy there is; and all that the books say, is,
that the executor of the party deceasing, shall take account against the survivor per
legem mercator' and so is 3 Leon. ease 354. 2 Brownl. 99. The writ in the Register
135, iN. B. 117, is only to charge the survivor with account, Co. Lit. 172. And
though we are liable to account, yet that doth not take away [189] our action for
the whole, for after a recovery we are still accountable as receptor' denarior', &c.
Besides, there is no inconsistency in the law for to have a survivorship in point of
remedy. Further, here it may be, because that the executor and the plaintiff cannot
join; supposing them tenants in common, yet both should have joined in this
personal action, and the action shall survive for the whole, Lit. sect. 315. Covenant
between three having a joint stock, survivor alone shall have the action, Eclaston v.
Clipsham, 2 Keble, 338, 339 (a). Bro. 1 Joinder 28, 35. But then supposing it ill,
yet no advantage is to be taken of it by plea in bar, for we have a cause of action,
and this is only to shew us how to bring a better writ, which is only in abatement;
it is no more than jointenancy in case of land, or claiming the whole land when our
right is only to a moiety, and therefore this matter ought to have been pleaded in
abatement, for it is not to the merits of the cause ; for in the case of Hall v. Huffam,
Hilary term, 18 Car. 2, 3 Keb. 737 (b), where this is allowed (which is the only case
I know of) that was in abatement, and yet on a new action in 3 Keb. 798, it was said
that they and the executors could not join, but the executors should come in upon
the recovery of their share.
Per Curiam, This can never be a good bar, so that we do not consider whether the
executors must or can join.
Judgment for the plaintiff (c).
CASE 139. KEMaP against ANDREWS.
Michaelmas Term, 2 Will. & Mary, Roll 290.
To a special action on the case brought by the survivor of joint partners on the joint
property the defendant may plead in abatement the jointenancy and that there is
no benefit of survivorship; and therefore the executors of the deceased partners
ought to join.-S. C. ante, 188. S. C. Ray. Ent. 507. S. C. Holt, 545. S. C.
3 Lev. 290. S. C. Carth. 170. S. C. 12 Mod. 3. S. C. 3 Salk. 1.
Specialty, declaring, that the plaintiff and G. N. and J. P. whom the plaintiff
survived, in the lives of G. N. and J. P. were apud Mecho in partibus transmarinis, viz.
at St. Helen's in warda de, &c. possessed of the goods and chattels following, &c. to
the value of fifteen thousand pounds, as of their proper goods and chattels, and some
goods being at Mecho aforesaid, being an infidel country in Africa, and inhabited by
barbarous people, viz. at London aforesaid, were directed, ordered and appointed to
be loaden and transported in and upon the ship of the plaintiff, and G. N. and J. P.
called the Streights Merchant, usque et ad port' de London, and that no other proper
or possible means then, or ever after, could be had for the transport of the said goods
than in and upon the said ship. That the said ship was then and there ready and
fit to receive and transport the said goods according to the appointment aforesaid;
(a) S. C. 1 Saund. 153, 347.
(b) S. C. 1 Freem. 468. 2 Lev. 188, 228.
(c) S. C. 3 Salk. 1, it is said that the plea would have been good in abatement.
But see Co. Lit. 182 a. Hall v. Huffam, 2 Lev. 228. Smith v. Milward, 2 Lutw. 1493.
Martin v. Crump, 2 Salk. 444.](ViewImageLocal?handle=hein.slavery/ssactsengr0957&div=1&collection=&method=preview&ext=.png&size=3)