Haight v. Holley

nece^rüyunderstood, inplie^ta apples. is traversable, as much as if it were expressly alleged. Thus, where to a plea of two suits pending for the same cause of action, the plaintiff replied that at the time of commencement of the suit in which the plea was interposed there was not another suit pending for the same cause of action, the replication was held to be good. Where an issue of fact on a plea in abatement is found against the defendant, the judgment is final, and not a respondeos ouster. The pendency of two suits, for the same cause of action, cannot be pleaded in abatement of each other, unless commenced at the same time. In an action of debt against a sheriff for an escape, in which an issue of fact is joined on a plea in abatement, a tarn quoin clause is not necessary to authorize the assessment of damages. Under our present mode of drawing and summoning juries, no defects in the venire, or integrality in the issuing or return of it, will affect the judgment of the proceedings at the trial.

This was an action of debt against a sheriff for the escape of a defendant in execution, tried at the Columbia circuit, in April, 1828, before the Hon. William A. Duer, one of the circuit judges, jo The declaration set forth a judgment in favor of the plaintiffs against William Badgley for $1184,40, the issuing of a Ca. sa., the arrest of the defendant in the execution, and his escape on the 7th September, 1827. The defendant pkacled in abatement that on the seventh day of September, 1827, the-plaintiffs sued out a capias against the defendant, tested 18th August, 1827, returnable on the third Monday of October then next, the ac etiam in which was to answer the plaintiffs in debt for the escape of William Badgley; and that on the tenth day of September, they sued out another capias precisely like the first; that the .causes of action mentioned in the first and second writs are the same as those declared on; and that both suits are now pending, wherefore he prayed judgment of the declaration, &c. The plaintiffs replied, that at the time of the commencement of this suit, there was not another suit pending in favor of the plaintiffs against the defendant for the cause of action set forth in the declaration, concluding to the country, and praying judgment. On the trial the defendant produced certified copies of the two writs of capias set forth in his plea; one of which had an endorsement on it purporting that the defendant was arrested on the seventh day of September, 1827; the other had an endorsement on it that it was received by the coroner on the tenth day of the same month; and both appeared to have been filed in the clerk’s office on the eighteenth day of October, 1827. On this evidence the defendant rested. On the part of the plaintiffs, it was proved that two writs were issued; one on the sixth, and the other on the tenth day of September, 1827, for two several escapes from imprisonment on the same execution, and that the declaration in this cause was for the escape for which the first writ was issued. That after the declaration was served, the plaintiffs’ attornies, at the request of the defendant’s attorney, informed him in writing that they had declared in the first suit for the first escape. This evidence was received by the judge, although objected to by the defendant’s counsel. The jury, under the direction of the judge, found a verdict for the plaintiffs. The plaintiffs’ counsel then prayed that the damages might be assessed by the jury, to which the counsel for the defendant objected, because a venire had not been issued for the assessment of damages, and because that which had been issued had not been delivered to the coroner until the first day of the circuit. Thé venire was a common venire facias without a tam quám clause. The judge overruled the objection. The defendant then offered to prove that the escape of Badgley was by the procurement of the plaintiffs. This evidence the judge refused to receive; whereupon the plaintiffs produced the record of judgment in the original cause, and proved the payment to the defendant of $19, 69, his fees on the ca. sa. The jury found for the plaintiffs for $1184,40 debt, and assessed the damages at $19,69, subject to the opinion of this court.