[Troy v. Rogers, et al.] section 2523 of Code of 1886 (Code of 1896, § 2049)where personal property has been levied upon, a claim of exemption thereof has been interposed by the defendant in the process, and such claim is contested by the plaintiff in the process. For all the purposes of these several sections, it is immaterial whether the process is a writ of attachment or an execution upon judgment; the one essential in this connection is that a levy, whether of the one writ or the other, has been made upon the property; the statutes employ only the word "levy." Hence it is that a bond reciting a levy without more, would be in strict conformity to the statutory requirement and fully show the statutory occasion and consideration for its execution. If, however, it recited the levy of an execution or of an attachment, as might be the fact, it would not, of course, be objectionable therefor. Neither, of course, would it be aided thereby. A question in this case is as to the effect upon such bond, as a statutory obligation and in respect of the summary proceedings upon it authorized by the section quoted, of a misrecital therein of the process levied upon the property in contest; the fact being that an attachment was as levied and the recital being that an execution was levied. We can not think the misrecital is of any importance. The fact misstated, being of matter of mere inducement to the obligation, and not necessary to be stated at all as inducement or otherwise, is surplusage, and to be disregarded as such. With or without the characterization of the levy as having been made under an execution, and whether such characterization be true or false, the bond fills all the terms of the statute; it shows upon its face that it was given for the forthcoming of certain property levied upon and claimed as exempt, it identifies the contest with respect to the pendency of which it is given, and shows that the obligors bind themselves to the forthcoming of the particular property involved in that contest. It is essentially the bond the execution of which by the plaintiff or defendant forms the basis for an assessment of the value of the property in contest, and the summary proceedings thereon authorized by section 2532. It follows that the assessment by the city court of the value of the property in contest in and by the judgment sustaining the claim of exemptions was authorized and [Eufaula Grocery Co., et al. v. Petty.] required by the statute. The value being an issue in that case and therein determined, the parties to the case are bound and concluded by that determination. The sureties on the forthcoming bond given by the plaintiff on the contest, though not strictly parties to the cause, are bound by the judgment equally with their principal, no fraud or collusion intervening; they might have discharged the bond by paying the value so assessed, and the assessment being thus conclusive in their favor must be so also against them. The present plaintiff might have had the bond returned forfeited and an execution issued upon it as a judgment; but these rights were not exclusive of his right to sue, as he has in this case, on the bond itself, and recover thereon what has been ascertained judicially in a proceeding to which the obligors were parties, or the judgment in which was as binding upon them as if they had been parties to the record, to be the value of the property which the bond required should be delivered to him, but which in breach of the condition thereof has been withheld by the principal in the undertaking. The city court erred in excluding the judgment in the contest from the jury; and its judgment is reversed. The cause is remanded. Reversed and remanded. 116 260 135 567 Eufaula Grocery Co., et al. v. Petty. Action of Trespass for Wrongful Levy of an Attachment. 1. Sale of goods by insolvent debtor to creditor; validity as to other creditor.-Where an insolvent debtor sells and conveys his property to one having knowledge of his condition, at a fixed price which was shown to have been a fair valuation of the property, the terms of the purchase being that the purchaser was to pay certain named creditors, and the remainder of the purchase price was to be paid in cash to the debtor, upon an agreement that he was to apply all of the cash payment to his then existing creditors, which was done in accordance with the terms of sale, and the debtor reserved no benefit to himself, such transaction is not fraudulent as having been made for the purpose of hindering, delaying and defrauding creditors. [Eufaula Grocery Co., et al. v. Petty.] APPEAL from the Circuit Court of Barbour. Tried before the Hon. JOHN R. TYSON. This was an action of trespass brought by the appellee, H. A. Petty, against the Eufaula Grocery Company, and the sureties on its indemnity bond given on the suing out of an attachment, to recover damages for the wrongful levy of the attachment upon the goods. The facts of the case are sufficiently stated in the opinion. There were several charges requested by the defendants, to the refusal to give each of which they separately excepted; but under the opinion in this case it is unnecessary to set out these charges in detail. There were verdict and judgment for the plaintiff. The defendants appeal, and assigns as error the refusal of the court to give the several charges requested by them. H. D. CLAYTON, and ALSTON & PEACH, for appellants, cited Gay v. Strickland, 104 Ala. 375; Comer v. Heidelbach, 109 Ala. 220. A. A. EVANS, contra.-The sale of the property to the plaintiff in this case was not frudulent and void. The court did not err in giving the charge asked by appellee. Bell v. Goetter, Weil & Co., 106 Ala. 462; Carter Bros. & Co. v. Coleman, 84 Ala. 256; Rankin & Co. v. Vandiver & Co., 78 Ala. 562. COLEMAN, J.-There is no material conflict in the evidence. W. C. Petty, an insolvent debtor, sold and conveyed his property to the appellee, who had knowledge of his financial condition, for $1,370; the terms of the purchase being, that the purchaser was to pay certain named creditors, whose debts aggregated about $1,075, and the remainder, in cash, to the vendor debtor, upon the agreement that he, the debtor, was to apply all the cash payment to his other then existing creditors. The goods were sold at invoice prices, and the evidence shows that the purchase price paid was a fair valuation of the property. The evidence shows that the purchaser paid the debts that he agreed to satisfy, and that the debtor applied all the cash received by him to his other debts, and reserved no benefit to himself. The Eufaula Grocery Company, a creditor of W. C. Petty, gave bond and attached a part of the property in the possession of [Tallman, et al. v. Drake.] the purchaser. The present action is in trespass by H. A. Petty. The only question before the jury was whether the transaction of the sale was made to hinder, delay and defraud creditors. Under the principles declared in the cases of Carter Bros. v. Coleman, 84 Ala. 256, and Rankin & Co. v. Vandiver & Co., 78 Ala. 562, we think the plaintiff was entitled to the affirmative charge; and consequently no injury could result from the refusal of the court to give the instructions requested by the defendant. Affirmed. Tallman, et al. v. Drake. Action upon Official Bond of Probate Judge. 1. Appeals; bill of exceptions; when statement shows that it contains all the evidence.-The recital in a bill of exceptions at the close of the testimony, as stated therein, that "This was substantially all the testimony. The court, on the testimony introduced, rendered judgment," &c., sufficiently shows that all the evidence upon which the trial court acted was set out in the bill of exceptions. 2. Probate judge; liability of sureties on his official bond.—Where a probate judge, by agreement with a guardian, during the continuation of the guardianship, assumes the management and control of the ward's funds, the sureties on the judges official bond are not liable for his failure to account for such funds; such act being entirely without the pale of the judge's official authority, he does not, by the doing thereof, impart to it "a color of office," within the meaning of section 273 of the Code of 1886, so as to bind his sureties. APPEAL from the City Court of Gadsden. This was an action brought by the appellee, Johnnie Carlton Drake, against the appellant, John A. Tallman, as probate judge, and the sureties on his official bond, to recover damages for the breach of said bond. The facts of the case are sufficiently stated in the opinion. . The cause was tried by the court without the intervention of a jury, and upon the hearing of all the evidence, the court rendered judgment for the plaintiff. [Tallman, et al. v. Drake.] From this judgment the defendants appeal, and assign the rendition thereof as error. W. T. MURPHREE, for appellant.-1. The policy of our law is opposed to allowing judges of probate to handle funds of minors; and the act of the probate judge in receiving the funds of the ward, involved in this case, was beyond his official authority, and did not fasten a liability upon his sureties.-McKee v. Griffin, 66 Ala. 211; Coleman v. Ormond, 60 Ala. 328; Morrow v. Wood, 56 Ala. 1; McElhaney v. Gilleland, 30 Ala. 183; Mason v. Crabtree, 71 Ala. 479. N. G. CANNING, contra.-The bill of exceptions must set out all the evidence. In this case it does not purport to set out all the evidence, and this court will presume there was evidence sufficient to support the judgment below. Code of 1886, § 3550; Webb v. Ballard, 97 Ala. 584; Burgin v. Raplee, 100 Ala. 433; Bridgeport Lumber Co. v. Ladd, 107 Ala. 244; White v. White, 107 Ala. 417. HEAD, J.-Appellee's counsel insists, in his brief, that the bill of exceptions does not purport to set out all of the evidence, but we find, at the close of the testimony, as stated in the bill of exceptions, the recital that, "This was substantially all the testimony. The court, on the testimony introduced, rendered judgment," etc. This statement sufficiently shows that all the evidence. upon which the trial court acted was set out. This is an action by the appellee, Drake, against appellant, Tallman, and the sureties on his official bond, as judge of the probate court of Etowah county (who also appeal), for a breach of said bond. Divested of all surplus matter, the facts are, simply, that on May 28, 1892, Rich Michem, being the legal guardian of the plaintiff, then an infant, and, also, having been guardian of Ella Carlton McGuire, who had then attained her majority, appeared before the probate court and made, what appears upon the face of the decree to have been intended as, a partial settlement of his guardianship of Johnnie, and a final settlement of his guardianship of Ella. An account was stated, and a balance of $527.93 ascertained to be due the wards. The assets received by the guardian consisted of the single sum of |