The present suit was what is known in our jurisprudence as a trial of the right of property. Bawlinson had formerly owned the merchandise which is the subject of the controversy, and the testimony leaves but little, if any doubt, that both appellants and appellees were creditors. ’ Boswaldt& Stoll sued out an attachment against Bawlinson, which was levied on the merchandise about ten o’clock, a. m., December 20, 1886. The claim of Hobbie & Teague is, that earlier on the same morning, Bawlinson sold and conveyed the goods to them in payment of the debt he owed them, delivered them, and that they were in the possession of their agent when the levy was made. No question appears to have been made on the sufficiency of the consideration.
On the same day the attachment was levied, the agent of Hobbie & Teague, in their name, executed a replevy bond, conditioned, if defendant failed in the action, to , return the specific property in thirty days. The bond conforms to the provision of the statute. — Code of 1886, § 2964 (3289). Thereupon, the sheriff restored the property to claimants. On the next day, December 21, 1886, the claimants, Hobbie & Teague, through their agent, made affidavit that they had a just claim to the property levied on, and executed a claim *?bond in conformity with §§ 3004 (3341), 3012 (3290), Code of 1886. This claim bond and affidavit were, on the day of their date, tendered to the sheriff, and the replevy bond demanded, that it might be cancelled. The sheriff declined to surrender the replevy bond, but we are not informed what reason he gave, if any. He accepted the claim bond, however, approved it, and returned both bonds and the affidavit of claim to the court.
At the return term, Roswald & Stoll moved the court to strike the claim affidavit and bond from the file, on the ground that they were improperly received after the goods had been replevied, and the goods obtained and held by. the claimants themselves under such replevy bond, and to dismiss said claim proceeding out of court. The court overruled the motion, and ruled that Roswald & Stoll should tender an issue, with a view to the trial of the right of property. To this ruling plaintiffs excepted.
In Braley v. Clark, 22 Ala. 361, as in this case, property was attached, and a replevy bond was given by a stranger to the record. Judgment was obtained in the attachment suit, execution placed in the hands of the sheriff, and he demanded of the bondsmen a return of the property. The demand not being complied with, he returned the bond forfeited. The principal in the replevy bond thereupon interposed his affidavit and bond, claiming the property as his own. The Circuit Court allowed the claim, but this court reversed its ruling, on the ground that the claim came too late. The language of this court was, that “to authorize such claim, the property must either be in the actual or constructive possession of the officer of the law under process. In the case under consideration, it had been taken out of his possession by the defendant in error, under the replevy bond, and by him retained when demanded by the sheriff. It is true he might, under the condition of his bond, surrender the slave to the sheriff in discharge of his liability; and having thus placed it in the custody of the officer, he could, if he were disposed to do so, interpose his claim and try the right to it. But having elected to forfeit the condition of his bond,’’ &c., he lost his right to interpose his claim. It will be observed that, in this case, no attempt was made to assert the claim, until after the replevy bond had been returned forfeited. Nor had the sheriff accepted the claim bond until ordered to do so by mandamus from the Circuit Court.
Cooper v. Peck & Clark, 22 Ala. 406, is only part and *77parcel of substantially the same case as that above considered. The same property, a slave, was attached as the property of the same defendant in each case. In this last case it was shown, that the slave had died before the sheriff made demand of his return under the replevy bond, and the offer to institute the claim suit was made at the time the sheriff demanded the return of the slave. The sheriff refused to accept the affidavit and bond offered, and indorsed the replevy bond forfeited. An execution was thereupon issued on the forfeited bond, which the sheriff was proceeding to collect. Under a petition filed for the purpose, the Circuit Court ordered the sheriff to accept the claim affidavit and bond, and quashed the execution issued on the forfeited replevy bond. This court reversed his decision, saying “that the condition of a replevy bond can only be complied with by a delivery of the property replevied to the sheriff, on his demand, after judgment- against the defendant in attachment. The tender of the bond to try the right of property replevied, when the property itself is withheld from the sheriff, is a breach of the condition of the bond, and justifies the 'sheriff in returning it forfeited.”
In Rhodes v. Smith, 66 Ala. 174, speaking of the liability of a bondsman on a replevy bond, and the means of relieving himself, this court said: “If the title resides in him, and the defendant is without an interest therein subject to levy, this will not excuse him from performance of the condition of the bond. The redelivery of the goods, to answer the levy of the writ, is the dirty to which the bond obliges him. When he has redelivered them, he may then interpose a claim to them, and demand a trial of the right of property.” — See, also, Munter v. Leinkauff, 78 Ala. 546; Mead v. Figh, 4 Ala, 279; Mitchell v. Ingram, 38 Ala. 395; Adler v. Porter, 57 Ala. 571; Brown v. Hamill, 76 Ala. 506; Woolfolk v. Ingram, 53 Ala. 11.
Our rulings have certainly settled these propositions: First, that when attached property has been replevied, and the liability of the bondsmen has become fixed by a proper-demand, and indorsement of the bond “forfeited,” the bondsmen are estopped from denying the liability of the property to the process, and from setting up any adversary claim to it. Second, when attached property has passed from under the control of the attaching officer, on the execution and approval of a replevy bond, so long as the property remains out of his control, the bondsmen, at least, can interpose no *78valid claim to it under the statute. Third, until the liability of the bondsmen is fixed by a refusal to deliver the property to the officer, the bondsmen may restore the control of the property to him, and may then assert any claim to it which they could have asserted before the execution of the replevy bond.
We think the Circuit Court did not err in overruling the motion to strike the claim proceeding from the file. True, there was no formal surrender of the possession of the goods to the sheriff, but the sheriff is not shown to have made any point on that. He accejyted the affidavit of claim, and approved the claim bond offered. This estopped the claimants from denying that they acquired the possession and held it under the claim bond. If the sheriff had been placed in possession of the property, he would have retained it only long enough to approve the bond, when it would have passed instantly back to the claimants. If 'the possession acquired under the replevy bond had been tendered to the sheriff, and simultaneously a sufficient affidavit of claim and sufficient claim bond had been tendered to him, he would have no authority to refuse either. Had he done so, on proper application a mandamus would have been awarded, compelling him to accept the redelivery of the goods, to receive the affidavit of claim, and to consider the sufficiency of the sureties offered on the claim bond; and if found sufficient, he would have been compelled to approve the claim bond, thus annulling the replevy bond, and inaugurating proceedings for a trial of the right of property. Now, what is the difference between the case supposed, and the case we have in hand? Merely the unsubstantial, fruitless ceremony of placing the sheriff, for a moment, in the actual or constructive possession of the goods. The law has regard for the substance, not the empty forms of things. This case is distinguishable from our former rulings, which merely hold that, when the liability of the bondsmen has become fixed by a failure to deliver, according to the stipulations of the bond, or until after it has become impossible to restore the property to the sheriff’s possession, it then becomes a statutory judgment, and precludes all denial that the property is subject to the attachment or execution under which it was seized.
The present case being a trial of the right of property, if the verdict had been for the plaintiffs, it would have been the duty of the jury to assess the value of the property levied on. — Townsend V. Brooks, 76 Ala, 308, To do so, the jury *79must have had testimony as to the value. Plaintiffs proved by the sheriff that, when he attached the goods, he made an inventory of then, affixed a value to the several articles which was shown by the inventory, and which, in his opinion, was the ‘■reasonable market values of the said goods, wares and merchandise.” This inventory was offered in evidence by plaintiffs, in connection with, and as part of the oral testimony.' Claimants objected, “mpon the ground that the said claim bond fixed the measure of the value of the goods.” The court sustained the objection.
It is manifest that the ground stated by the counsel for excluding the evidence was indefensible. The value fixed in the claim bond is the ex-parie work of the sheriff, and does not conclude either plaintiffs or claimants. It is not evidence on which a jury can act in assessing the value of property condemned to the satisfaction of an execution or attachment. Pending the trial, when the result of the suit can not be known, the evidence of value should be received, if offered by either party. But .the ruling in this case, considered in reference to the phase of the question we have been considering, did the appellants no harm. They failed to obtain a condemnation of the property, and, hence, assessed value did not become an element of the verdict. But this question has another phase. Hobbie & Teauge made claim under a purchase of the merchandise, the sole consideration being an indebtedness from Bawlinson, the defendant in attachment. This sale, made by a known insolvent debtor, giving a preference to one creditor to the prejudice of others, cast on the preferred creditor the duty and burden of proving that the goods were acquired in absolute purchase, and at a price not materially disproportionate to their fair market value. — Crawford v. Kirksey, 55 Ala. 282; Hodges v. Coleman, 76 Ala. 103. Proof of the value of the merchandise should have been received, on this phase of the inquiry. The form in which the testimony wa§ offered, was free from objection. — Hirschfelder v. Levy, 69 Ala. 351; Mooney v. Hough, 84 Ala. 80.
The first charge asked by plaintiff was rightly refused. The duty was on Hobbie & Teague to prove that their purchase was on a “valuable and adequate consideration,” but not to prove the negative — that no benefit was reserved to Bawlinson. The laboring oar on that negative proposition was with Boswald & Stoll.
We find but the one error in this record,
Beversed and remanded.