The issue is as to the t ownership of a watch and ring — whether they belonged to the defendant in attachment, J. T. Moore, or to the claimant, G. W. Collier; the proceeding being a trial of the right of property, under the statute. There had been a previous trial, before a justice of the peace, of an action of detinue, by said J. T. Moore against one Cardinal, for the recovery of the watch and ring; and, on the present trial, the plaintiff, against the objection and 'exception of the claimant, was allowed to prove by the justice who tried the detinue suit, .that, on that trial, Moore testified that the property belonged to him, and that Collier, the present claimant, was present and said nothing. We think this action of the court was a misapplication of the familiar rule that declarations made in the presence of, and against the interest of a party, under such circumstances as would naturally call forth from such party an explanation or denial, if the declarations are inaccurate or untrue, are admissible in evidence against him. In the instance under review, the declarations of Moore were made while testifying as a witness, on the trial-of a cause, in. a court of justice. If Collier, being present in court, and hearing Moore testify, had denied the truth of Moore’s statements, or attempted to explain them, he would have been guilty of a most palpable contempt'of court, for which he, no doubt, would have been punished. The effect of the court’s ruling was to induce the jury to act upon Collier’s failure to commit a contempt of court, as an admission, by silence, of the truth of what Moore had testified. The proposition of counsel that the evidence was admissible, as showing notice to Collier of the liti*268gation, and its results, between Moore and Cardinal, is too fallacious for discussion. ■
The plaintiff against the objection and exception of the claimant, was allowed to introduce two bonds which Moore gave, on the institution of the said detinue suit, in order to obtain the necessary writ or order of seizure, which bonds were entered into and signed by the claimant, Collier, as a surety of Moore. We think these bonds were admissible, as serving a prima facie admission or recognition by Collier that the property belonged to Moore. They were not, however, conclusive against him, that the property was, in fact, Moore’s and not his own, either upon the principal of an admission merely, or as an estoppel, in favor of the present plaintiff, to show his own title. The prima facie recognition of Moore’s ownership, afforded by Collier’s becoming surety on the bonds, was open to explanation, consistently with his own right of property in the chattels. It may be, that Moore’s claim, and right to maintain the detinue suit, was based upon a disturbed possession in him, as bailee of the claimant, Collier. A qualified property with the right to immediate possession, the general ownership residing in another, is sufficient to support detinue against one, other than the general owner entitled to immediate possession. This very explanation, Collier endeavored to make, by the introduction of evidence ; and the court erroneously refused to allow him to make it, on the idea, as we gather from the objections and arguments, of counsel, that by signing the detinue bonds he had estopped himself, as in favor of the garnishing plaintiff, to assert any title to the property. If the institution of a suit by plaintiff to condemn the property to the satisfaction of his debt against Moore, induced by conduct having the qualities of an estoppel,be legally deemed an act to his detriment, upon which the estoppel would operate in his favor, the principle has no application here, for the reason, as we have said, that the execution of the bonds by Collier as a surety was, upon its face, open to explanation by him, consistently with a general property in himself, entitling him to recover in the present controversy, and a special property only in Moore, entitling him to recover in the detinue suit; and being capable of this explanation, the plaintiff was bound to know it; and if he acted *269upon Collier’s conduct, he did so at the risk of this explanation being made.— Ware v. Coles, 2d Ala. 446. Again, if, under any conditions, we could inject into the execution of a bond by a surety, for the purpose of instituting and carrying on a law suit, the elements of an estoppel, and it were not subject to the explanation above pointed out, the plaintiff could take nothing by it, in the present case, for the reason that there is nothing in the case from which it can be inferred that the claimant executed the bond with the intention that plaintiff, or any one else in his situation, should act upon it. It is not attempted to be shown, even if it were material, that Collier knew plaintiff was a creditor of Moore, or that he had any creditors. — 7 Am. & Eng. Encyc. of Law, 16.
In view of what we have said, the court erred in allowing proof that the plaintiff and attorney were told that the justice had decided the detinue suit in Moore’s' favor.
Although the claimant’s evidence tended to show that the property belonged to him, and not to Moore, and that he was entitled to the immediate possession of it, the court gave the general affirmative charge in favor of the plaintiff. This was error.
Reversed and remanded.