By the Court,
Marcy, J.The statute regulating the drawing and summoning juries, has made the jury process almost a matter of mere form ; and in civil cases no defects in the venire, or irregularity in the issuing or return of it, will be now permitted to affect a judgment, or the proceedings at the trial. Even if the ancient strictness were adhered to," I do not consider the objection that the venire did not contain a tarn quam cause, well founded. The case did not require such venire. (6 Cowen, 48. 1 Wendell, 115.) The plea was defective, and, strictly construed, did not interpose any matter of defence. The pendency of two suits for the same cause of action, cannot be pleaded in abatement of each other, unless they were commenced at the same time. Where two suits are commenced for the same cause of action at different times, the pendency of the former may be pleaded in abatement of the latter. The plaintiffs chose to consider the plea as tendering an issue of a former suit pending, and the replication puts that fact in issue.
The defendant contends that judgment cannot be rightfully entered against him, because he sustained at the trial the truth of his plea. He proved that two suits were pending against him by the plaintiffs for the escape of Badgely, but he did not shew that they were for the same escape; and the plaintiffs shewed that the second suit was commenced after the escape for which the first was brought. It is not strictly true, therefore, that the defendant fully established every allegation and fact stated in his plea. The plaintiffs insist that *263they had a right to consider the plea good, and to imply and traverse what would make it so, to wit, the pendancy of a former suit. The cases in 11 East, 406, and 1 Ld. Raym. 39, seem to warrant this position. In the case reported by Lord Raymond, the action was for the escape of a prisoner, and the plea was a recaption, which was undoubtedly bad without alleging a detention. The plaintiff put in issue the recaption and detention. The defendant demurred to- the replication, because the plaintiff had included in his traverse matter not alleged in the plea. The plaintiff had judgment upon this demurrer. This decision, as Lord Ellenborough says, in remarking on that case, “ must have proceeded up. on the ground that the detention of the prisoner was virtually implied in the plea, and the plaintiff might therefore include it in his traverse.”
It was urged, on the argument, that if there was a judgment against the defendant, it should be a respondeos ouster. The rule is, when the judgment is on demurrer, it is a respondeos ouster, but where the issue of fact on a plea in abatement is found against the defendant, the judgment is final. The issue here having been found for the plaintiffs, judgment must be final.
Judgment final for plaintiffs.