Moreland v. Ruffin , 1 Minor 18 ( 1820 )

THE writ of capias is issued against Elisha Moreland ano: John Avent, and by mistake of the Sheriff,.was returned as executed on both, when in fact it had been executed on Moreland only. Ruffin declared’ against Moreland only, in assumpsit on a promissory note, with a. count for money lent, money had and received, &c. Moreland demurred, assigning, among other causes of demurrer, that the writ appeared by the Sheriff’s return to have been executed on Avent also, &c. On motion of the plaintiff, the. Sheriff' (after joinder in demurrer) was permitted to amend his return according.to the facts ; at the same term the demurrer was overruled, and final judgment rendered for the amount, which appearecLto be due on the note. Moreland appealed to -this Court. The- points involved in the assignments of Error are shewn in the opinion of the Court by the Chief Justice.

By the common Law, Ministerial acts were amendable ai.’ any.time; but Judicial acts not after the term.^(a) The Sheriff’s return is a Ministerial act, and we have no doubt but that the Court ; below did right in permitting the amendment. ■

As to the final judgment without the intervention of a Jury, the counsel for the appellee has endeavoured to avail himself of our Statute of 181-2,^(b) which provides, “ that in “ all actions founded on any writing, ascertaining the plain- “ tiff’s demand or sum sued for, if judgment by de- “ fault or on demurrer be entered thereon, the Court where " the same action shall be pending, shall, and may lawfully enter judgment for the debt or demand, with interest there- ■ on to be Calculated by the Clerk, &c. without the intervention of a Jury to enquire of damages,” &e. Can this .Statute be construed to embrace any other than actions exclusively founded on a writing ascertaining the demand or sum sued for ? - It does not include actions for money had and received, goods sold, &<vor other unliquidated demands; yet counts for these may rightly be joined with a count in assumpsit-on a promissory note, and a recovery had on testimony wholly unconnected with ’the note. It would seem, that in 'this act the Legislature have only adopted the principle observed in the English Courts under the v common Law. There it has long been the practice in actions on Bills of Exchange and promissory notes, to refer it to the master to compute the principal and interest due.^(c) But if the declaration contain other counts on un-liquidated demands, the plaintiff before reference to the master enters a nol. pros, on all but the count on the bill or note, and thus limits his cause of action to the writing ascertaining his demand.

.II. G. Perry, for appellant. John Taylor, for appellee.

The Statute referred to cannot, we conceive, on fair principles of construction, be extended beyond its express provisions. In this case a nol. pros, does not appear to have been entered as to any of the counts. The judgment -appears to have been rendered on both, and it must for,this .reason be reversed, and the cause remanded.

(a) 1 Stra. 39, 136. 1 Saund. 250.

(b) Laws Alaba. 465, Sect. 3.

(c) 1 Sellon Pra. 346, 7, 4 Term. 271.