case kemp against andrews Michaelmas term will mary roll to a action of trover  bring by the survivor of three partner in trade it can be plead in bar that  the two decease partner and the plaintiff be joint merchant and that there be  not any right of survivorship for if the executor of such decease partner  ought to join it be matter of abatement and not in bar SC post SC lev SC Carth  SC salk SC Mod SC holt SC ray Ent the plaintiff declare pro eastern quod he  and one I n and I p now decease who the plaintiff survive be in the life time  of the say I n possess as of their proper good and chattel videlicet a ship  call the straight merchant with its apparel and diverse other good to the  value of twenty thousand pound and be so possess do lose they and they come to  the defendant hand by find and he in the life time of the say c convert they  to his own use the defendant go for sale et make practice of defending vim et  in an unjust manner when c action non because to say quod the plaintiff et  predict I n and I p long before the time in the declaration and the say  several time c be merchant and as joint merchant for their common profit be  possess of the say good and that by the law of merchant and the law within d  see the same case under the name of darcy v Jackson palm roll Rep more cro  Elizabeth roll Rep e SC Noy f see vicar v Haydon Cowp and dougl note g SC cro  Elizabeth shower KB er p the kingdom of England use and approve there be not  or ever be any right of survivorship between joint merchant that I n before  the exhibit of the bill die and make I d his executor who prove the will and  be yet live that I d die also and make r S his executor who prove his will and  be yet live et hoc a preparation be verify unde petit judgment si action c the  plaintiff demurrer and show for cause quod placit to touch ad general exit  incert be et caret form I argue that the matter of this plea be ill that  though in point of interest there be no survivorship yet in point of remedy  there be and all that the book say be that the executor of the party decease  shall take account against the survivor per law mercator and so be Leon case  Brownl the writ in the register n b be only to charge the survivor with  account   light and though we be liable to account yet that do not take away  shower KB our action for the whole for after a recovery we be still  Accountable as receptor denarior c beside there be 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 can join suppose they tenant in common yet  both shall have join in this personal action and the action shall survive for  the whole light sect covenant between three have a joint stock survivor alone  shall have the action Eclaston v Clipsham Keble a bro joinder but then suppose  it ill yet no advantage be to be take of it by plea in bar for we have a cause  of action and this be only to show we how to bring a better writ which be only  in abatement it be no more than jointtenancy in case of land or claim the  whole land when our right be only to a moiety and therefore this matter ought  to have be plead in abatement for it be not to the merit of the cause for in  the case of hall v Huffam Hilary term car keb b where this be allow which be  the only case I know of that be in abatement and yet on a new action in keb it  be say that they and the executor can not join but the executor shall come in  upon the recovery of their share per curian this can never be a good bar so  that we do not consider whether the executor must or can join judgement for  the plaintiff c