
    BILBERRY, Adm’rx vs. MOBLEY.
    1. The fact that a creditor was unable to collect his debt is evidence tending to show the insolvency of the debtor, and is admissible for that purpose; but it may be explained by showing that the inability to collect did not result from the debtor’s inability to pay.
    2. Tbe deelax’ations of one in possession of personal property, as to the ownership, are not evidence of the condition of the same property more than three years before the declarations were made.
    Error to tbe Circuit Court of Dallas.
    Tried before tbe Hon. E. Pickens.
    This was a trial of tbe right of property of cotton, which bad been levied on by an execution against Isham Bilberry, originally claimed by Henry Bilberry, and tbe proceedings continued after bis death by tbe defendant as bis administra-trix. Tbe bill of exceptions shows tbat tbe plaintiff below offered to prove tbe insolvency of tbe defendant in execution, by proof of tbe fact, that be was owing money to a witness wbo was introduced, and that sucb witness bad not been able to collect it from bim, without producing any execution returned “nulla bona.” This evidence was objected to, but tbe objection was overruled, and tbe evidence admitted.
    Tbe plaintiff’s execution was issued by a justice of tbe peace in December, 1817, and there was evidence tending to prove that tbe property levied on bad been sold to tbe defendant’s intestate. Henry Bilberry, for a mare. Tbe plaintiff offered to prove that during tbe year 1851, tbe defendant, acting as administratrix of Henry Bilberry, claimed the mare as her individual property, to which tbe defendant also objected, but tbe objection was overruled, and tbe testimony admitted. Tbe admission of tbe evidence objected to, is here assigned for error.
    George W. Gayle, for plaintiff in error.
    1. Tbe evidence of tbe insolvency of tbe defendant in execution was improperly admitted. Tbe insolvency of a party cannot be shown by tbe fact that one man could not collect bis debt. It may have been that tbe defendant in execution was out of tbe State, or bad riloved away. Tbe record does not show that tbe witness bad ever brought suit, or run an execution, or that tbe defendant was “ embarrassed.” Parker v. Branch Bank at Montgomery, 5 Ala. Rep. 781.
    2. Tbe declarations of tbe administratrix, as to tbe ownership of tbe property, were improperly admitted; first, because she made tbe declaration as administratrix, and of course it could not bind tbe estate; secondly, because tbe declaration was made more than three years after the claim was interposed, and after tbe issue in tbe claim- suit was made up.
    Campbell & Bird, contra.
    
    1. Tbe declarations of ownership were admissible, being made by one in possession. Oden v. Stubblefield, 4 Ala. Rep. 40; Bbss v. Winston, 1 ib. 344; Mobley v. Bilberry, 17 ib. 428.
    
      2. There was no error in admitting the evidence of the insolvency of the defendant in execution. 5 Ala. Bep. 781.
   GOLDTHWAITE, J.

— The first question presented on the record is simply, if evidence that a creditor was unable to collect his debt was admissible to show the insolvency of the debtor. We are of opinion that it was. This evidence, standing by itself, and without explanation, warrants any inference which conld have been drawn from it, had a demurrer been interposed, and in that case the cause of the inability of the creditor to collect might have been legitimately referred to the want of ability on the part of the debtor to pay. The partjr against whom the evidence was offered, could have protected himself fully by a cross-examination, and have shown that the failure of the creditor to collect was not in fact owing to the inability of the debtor to pay, or he could have insisted before the jury on the insufficiency of the evidence. There was no error in admitting this testimony.

The evidence that the administratrix, more than three years after the execution had issued, by which the property was levied on, while acting as the representative of the claimant, had asserted her individual ownership of the mare for which the cotton had ostensibly been sold, was improperly admitted. There was evidence tending to show a sale of the cotton to Henry Bilberry, and the only object in the introduction of this testimony, that we can perceive, was to show a state of facts inconsistent with an actual and lona fide sale, and thus proving that it was fraudulent. The sale must have been before the levy, and the claim of the property constituting its consideration, by the administratrix of the party to whom it was made, at an interval of more than three years, is of itself too remote to authorize any legitimate conclusion of the condition of the same property at the time of the sale. The evidence was therefore irrelevant, and as it may have prejudiced the party against whom it was admitted, it is an error for which the judgment must be reversed, and the cause remanded.  