delivered the opinion of the Court :

1. There was no error in excluding the declarations of Hut-chins offered to be proved by the witness Dante. They were not made in the presence of the plaintiff; were in the declarant’s interest; and an impeachment of his own acts. Tierney v. Corbett, 2 Mackey, 264, 267.

2. There was no error in refusing the instruction to find for the defendant. The court, agreeing with defendant that delivery was essential to the completion of the verbal" gift, so instructed the jury; and, further, that there could be no recovery by the plaintiff upon the theory that there had been actual manual delivery shown by the evidence. But he further charged that, if the picture had been taken to and deposited in plaintiff’s house with the intention to devest Hutchins of ownership, and to make plaintiff the owner of the same, it would be a constructive delivery, and invest plaintiff with the title. No exception was taken to this instruction. The evidence on this issue was sufficient to go to. the jury, whose province it was to determine the credibility of the witness and the weight of the evidence.

3. The question of the sufficiency of the parol evidence of the gift becomes unimportant, however, in view of the written transfer of March 25, 1909.

This transfer, whether considered as a bill of sale, or as a confirmation of the previous verbal gift, had the effect, as between the transferrer and the transferee, to pass the title to the picture then in defendant’s possession, notwithstanding it was not recorded. Code sec. 546 [31 Stat. at L. 1275, chap. 854]; Tierney v. Corbett, 2 Mackey, 264, 269; Colbert v. Baetjer, 4 App. D. C. 416. See also Briggs v. United States, 143 U. S. 346, 354, 36 L. ed. 180, 184, 12 Sup. Ct. Rep. 391.

The transfer, being effective as to Stilson Hutchins, was equally so as to defendant, which was, at the time, his bailee, and' nothing more. Defendant’s sole defense was as such bailee. It is true that it had, at Hutchins’s request, advanced the money *165to pay the balance due by him to the London dealer; but there was no lien upon the picture in favor of the dealer, and there is no claim that Hutchins pledged the picture to defendant as security for the debt. Why the request for this payment should have been made does not appear, because the evidence shows that at the time Hutchins’s confidential agents had abundant funds to meet this and all other bills; and that they continued to have.

When the defendant paid over to said agent $1,000 as Hut-chins’s individual share of the profits of the sale does not appear, but tbe evidence shows that the agent, at the time of receipt, knew that the plaintiff claimed the ownership of the picture. Defendant, as we have seen, did not claim to bo a purchaser of the picture, or to hold a lien thereon.

1 lefendant had oo protection under the statute of limitations, because the transfer was dated March 25, 1909, and the action was begun two years thereafter.

No reversible error having been committed, the judgment is affirmed with costs. Affirmed.