The declaration made by the defendant in attachment, to the officer making the levy, that the horse, though found in his possession, did not belong to him, was self-disowning — in explanation that his possession was not as owner, but in subordination to the title of another; and under repeated decisions of this court, should have been received in evidence. — 1 Brick. Dig. 843, § 558.
2. The replevin bond, executed by the defendant in attachment, does not, in express terms, assert that the defendant claimed, or had any interest in the horse, upon which the levy was made. The parties executing it could not have set up the want of such interest, as an excuse for the non-performance of its condition — the re-delivery of the property to the sheriff, to answer the judgment the plaintiff might obtain. The bond could well have been executed by the defendant, if he was a mere bailee, or if he had a mere temporary interest and possession as a hirer. As to the claimant, the bond is res inter alios acta, and is not admissible as evidence against him, on any other theory, than that it was explanatory of the possession — an assertion by the defendant that he held as owner. Of that construction, the bond is not fairly susceptible, and there was error in receiving it in evidence.—Miller v. Hampton, 37 Ala. 342.
3. To render a voluntary conveyance, or transfer of property, void as to creditors, either existing or subsequent, it is indispensable, that the property should be of a kind a creditor could, by some-legal or equitable process, subject to the payment of his debts. It is upon this principle that the English Court of Chancery proceeded, in holding that creditors could not avoid a voluntary settlement of stock, or of dioses in action, or of copy-holds, or of any other property not liable to execution. — 1 Story’s Eq. § 367. In this country, since the policy of exempting by constitutional provisions, or by legislative enactment, property of a particular character, or of specified value, from liability for the owner’s debts, a like doctrine has prevailed. The gift of such property is of no injury to creditors — it works them no wrong, and deprives of no right, legal or equitable. As to such property, it may well be said, the owner has no creditors, and the power of disposition as if he were free from debt.—Bump on Fraud. Conv. 242; Fellows v. Lewis, at the last term. If, before the execution of the note by the defendant in attachment, waiving exemptions, he had given the horse to the claimant, and at the time of the gift the' horse was exempt from liability to *517the payment of his debts, the title of the claimant can not be assailed by the creditors of the donor, as fraudulent. By the gift, if it was consummated by delivery, the title of the donee -was perfect, and incapable of being affected by any subsequent act or declaration of the donor. The waiver of exemptions, in the renewed note, operated only as to property then owned by the donor, or- which he might subsequently acquire, and not on property with the title to which he had previously parted. The Circuit Court was in error, in excluding the evidence tending to show the horse was given the claimant by the defendant in attachment, when it was exempt from liability for the payment of the donor’s, debts.
Reversed and remanded.