Snoddy v. Watt.

ment. In the case before the court, the complaint describes the land sought to be recovered, as containing 320 acres, being the same on which the defendant resided at the time of the complaint, and had resided the preceding year. This we think was sufficiently precise to inform the party what he was required to answer, and there is no difficulty in advising the executive officer of the court of the same matter. But independent of this, it is also described as land which the plaintiff rented to a named person, in 1844, and which then was occupied by him. These descriptions would either of them be good in a deed, or devise, and, in our judgment, are so in a complaint of this nature. There is much intrinsic difficulty in describing lands, when the precise metes and bounds are not determined by natural or artificial objects, and in general, a description, by referring to the occupancy of individuals in possession, is as certain as is necessary.

2. As all the objections to the complaint, except the one just examined, are, under the decisions cited, considered as cured by the verdict, it only remains to ascertain, whether or not, there was error in refusing the specific charges demanded by the defendant. It will be seen, the evidence before the jury is not stated; therefore, if the charges might correctly be refused, under any condition of proof, there is no error shown on the record.

The statute makes a distinction between forcible detainers and such as are unlawful only. The latter class seems to apply chiefly, if not exclusively to tenants who shall wilfully, and without force, hold over against their landlords, or the persons to whom the remainder, or reversion of the estate leased, still belong, after demand and notice in writing, for the delivery of the possession. But it extends also, to all persons in possession of the lands, &c., by, from, or under, or by collusion, with the tenant. [Dig. 251, § 5.] Now, in view of this statute, it is very clear the defendant might be guilty of an unlawful detainer, although he was not a tenant of the plaintiff.

Nor is it necessary it should be shown, he recognized the tenant of the plaintiff, who we will presume, was in the occupation of the premises the preceding year, as his landlord, because, if he was in under him, or by him, or by collusion with him, he was amenable to the plaintiff in this form

Thornton v. Winter.

of action. The statute intended to protect the possession of the landlord, against any act of the tenant, or the acts of others permitted by him. There is nothing shown in the record from which we can pronounce this was not the condition of the defendant, and therefore cannot say the refusals so to instruct the jury was erroneous.

There is no available error disclosed by the record, and the judgment is affirmed.

THORNTON v. WINTER.

1. The levy of an attachment on a pair of shoes, if really made, and the shoes of any value, is sufficient. If the levy is fictitious, or colorable, it would be quashed by the Court to which it was returned on motion. 2. The return of the sheriff, that he has levied on certain property by virtue of the writ, is an affirmation that it is the property of the defendant.

Error to the Circuit Court of Barbour.

DEBT commenced by attachment, by the defendant, against the plaintiff in error. The sheriff returned the attachment, "levied this attachment on one pair of shoes." Two persons were also summoned as garnishees, against one of whom a judgment was rendered on his answer, which was afterwards set aside, and the garnishment discharged.

The plaintiff obtained judgment against the defendant in attachment, and subsequently the plaintiff making the necessary affidavit, J. B. Robinson and J. Brooks were summoned as garnishees, and answering, a judgment was rendered against them for the amount admitted to be due.

The assignment of error, is, that there was no levy of the

4

Thornton v. Winter.

attachment, on which to render judgment against the defendant or the garnishees.

SHORTER, for plaintiff.

ALLISON, contra, cited 8 Porter, 245; 1 Ala. Rep. 303; 4 ib. 527; 6 ib. 831.

ORMOND, J.-By the attachment law of this State, the attachment may be levied "on the lands, goods, chattels or effects of the defendant, or it may be levied on a debt due him in the hands of his debtor, who is garnisheed to appear and answer."

The levy of the attachment, is by the statute made equivalent to the service of ordinary process, and is in law the appearance of the defendant. The levy on a pair of shoes, was, if really made, and the shoes were of any value, a sufficient levy to sustain the attachment. They are the goods of the defendant, and therefore within the terms of the statute. If the levy was fictitious, or merely colorable, it would have been discharged by the court to which the return was made, on motion to quash, or set it aside. The objection cannot be taken here, because we cannot know that the articles levied on are of no value.

The return of the sheriff, that he had levied on certain property by virtue of the writ, is an affirmation that it is the property of the defendant. To this effect, see the decisions cited by the counsel for the defendant in error, and especially Kirksey v. Bates, 1 Ala. 303. The other assignments of error are not insisted on.

Let the judgment be affirmed.

Cunningham and wife v. Pool.

CUNNINGHAM AND WIFE v. POOL.

1. The return by a guardians from time to time of the account between himself and ward, and ordering the same to be recorded by the Orphans' Court is not such a res adjudicata as will prevent either party from showing an error in such returns, and estop the court upon final settlement from examining the debits and credits on both sides, from the commencement of the guardianship, and rendering such a decree as will be proper upon a view of all the facts. And the marriage of a female ward, after such occasional returns, cannot prejudice the guardian, or deprive him of credits that would have been available if the ward had continued sole.

2. The act of 1821, which authorizes the Judge of the Orphans Court to summon a jury to determine a contested fact, is not imperative upon the Court, so as to take from the Judge the power to decide for himself in such a case; and if no orror appears in his decision made without the intervention of a jury, it will not be reversed.

3. The act of 1803, which provides for receiving, auditing and stating the accounts of guardians, &c. and for exceptions to the report thereof, does not require a written voucher to support each item, or warrant the exclusion of oral testimony upon an exception to the stated account.

4. A mere gratuitous remark by a guardian, that he would not charge his ward for board, is not obligatory upon him, and the statute of limitations will not avail against such a charge, upon a final settlement between him self and ward.

5. In the settlement of a guardian's accounts, his credits should be allowed as of the time when the ward's estate became chargeable with them; and if interest is calculated against the guardian upon all the debits, it should also be allowed upon his credits.

6. A decree upon the final settlement of a guardian's accounts will not be reversed at the instance of the ward, because the Orphans' Court has directed each party to pay his own costs.

Writ of Error to the Orphans' Court of Perry.

THIS was a proceeding for the settlement of the accounts of a guardianship. It appears from the transcript, that the defendant in error was appointed in June, 1833, by the Orphans' Court of Perry, as the guardian of the person and estate of Margaret A. Utley, an infant heir of William S. Utley, deceased, and entered into bond with surety accordingly.

Cunningham and wife v. Pool.

In March, 1845, a decree was rendered, reciting that the guardian had previously filed his accounts and vouchers for settlements, that publication as required by the statute had been duly made, and that the ward together with John D. Cunningham, with whom she had intermarried, made themselves parties defendant to the proceedings.

The account of the guardian being stated the defendants objected to the allowance of the vouchers from 1 to 8, inclusive, because they were embraced by one of the previous annual settlements made with the guardian; but the objection was overruled, and they thereupon excepted.

The defendants also objected to the items and vouchers, from 10 to 13, inclusive, and from 15 to 27, inclusive, for the reason above stated; and because these annual settlements were made previous to the marriage of the ward, and if now opened, would prejudice the rights of her husband. This objection was also overruled, and thereupon the defendants excepted.

The defendants then tendered issues, alledging that the guardian should be charged with a promissory note made by Stewart George and John Heart, on the 2d January, 1837, payable twelve months after date, because they say, that by due diligence it could have been collected; the makers were solvent and able to pay it when it matured; and after it became due and payable, the guardian converted it to his own use. The court sustained a demurrer to the several issues tendered, with the exception of that which makes the latter allegation; to this the guardian made a formal denial of the conversion of the note.

Evidence was adduced to sustain an item in the guardian's account, for the board of his ward during the first year after his appointmont; but the defendants objected to parol testimony, on the ground that written testimony should have been filed with the account; this objection was overruled, and the defendants again excepted. Upon this point it was also proved that the guardian said that he should not, or had not charged his ward for any thing he might do, or had done for her further, that he would not charge her for the first two or three years. Thereupon the defendants moved the court to summon a jury of bystanders to determine whether they