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
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.