The declaration of the defendant in execution, previous to the recovery of judgment by the plaintiff, and while he was in possession of the slave in question, that he was the property of claimant was clearly admissible. See McBride v. Thompson, 8 Ala. Rep. 650; Webster v. Smith, 10 Ala. 429. We cannot conceive of any well founded objection to the declarations of the plaintiff, though made after the interposition of the claim of property; as they are evidence against himself only, it is perfectly immaterial when they were made, and certainly are not less potent because they were of recent date.
How the deed for the house and lot from Sheppard to the claimant, could in any degree tend to establish the title of the latter to the slave, we are unable to discover. To this *527point we have given much and anxious consideration, and are constrained to think, that the title to the lot and slave are not necessarily, or even presumptively in the same individual. The proof of the claimant’s title to the lot, had not the remotest connection, so far as the récord informs us, with the matter in issue, viz : whether the, slave was subject to the plaintiff’s execution. It cannot be intended that the evidence was relevant, even conceding that a bill of exceptions, where it is inexplicit, shall be construed most strongly against the party excepting. See 2 Phil. Ev. C. & H’s Notes, 436, et seq.
The writing which was drawn by the witness, Pounds, at the request of claimant and his wife, in October, 1840, would be competent as the declaration of the claimant of the circumstances under which he delivered the slave to the defendant in execution, if at the time he subscribed the paper, the slave was in his possession. By other testimony it would be competent to show the fact of possession by the claimant; but neither the deposition nor the writing itself, nor any testimony in the cause, prove that the slave was delivered to the defendant in execution simultaneously with the making of it. Nor does it appear whether the claimant had possession of him in October, 1840, or until he was delivered to the claimant, or his agent, by the defendant. In this predicament of the case, the citations we have made from our own decisions, show that the declaration should have been rejected, because there was no res gestae on which its admission could be rested.
The first charge given, will not perhaps bear the test of legal criticism. It narrowed the inquiries of the jury too much, and relieved them from the necessity of considering the claimant’s title since 1840, if he obtained possession of the slave before the judgment for costs was rendered against the defendant in execution. In respect to the second charge, it conforms to the law as laid down in Maul v. Hays, 12 Ala. Rep. 499. In that case, this court decided, that although a slave had been lent, and continued in the possession of the borrower for more than three years, without the registration required by the statute of frauds, if the owner resumes the possession before any creditor of the borrower has acquired a *528lien upon it, it cannot afterwards be made subject to the debts of the borrower. This decision is so explicit upon the points' on which, judging from the record before us, the case at bar must turn on a future trial, we decline the consideration of the questions arising on the plaintiff’s prayers for instructions.
We have but to add, that the judgment is reversed, and the cause remauded.