By the Court.
Lumpkin, J.,delivering the opinion.
*2751. The court was manifestly right in refusing to permit the defendants to prove by their books the weight of the cotton forwarded to Hartridge. The entries were -made from an account of the weights furnished by the warehouse men, who weighed the cotton. Their hooks, .if they kept books, as doubtless they did, and if not, their testimony, were better than the books of the defendants. At any rate, defendants failed to make it appear that the higher evidence did not exist; and the presumption is that it did.
2. Hartridge having died after the cotton was received, his temporary administrators notified the defendants that they should be compelled to sell the cotton to meet the drafts drawn upon it. No objection was made. They did sell it, and transmitted to the defendants an account of sales. No complaint was made. When suit was brought to recover the over-advance after giving the defendants credit for the cotton, the defendants gave this very account of sales in evidence. They offer no proof to impeach the bona fides of the sale. On the contrary, the plaintiffs prove that the cotton was well sold.
The judge charged the jury that the plaintiffs had a right to infer from the silence of the defendants, that they acquiesced in the .proposed sale; and that the account, upon the facts in this case, was conclusive against the defendants. All of which is excepted to.
It is rather difficult to comprehend the position of the defendants. They offered the account of sales rendered by the plaintiffs. And if they had not, what would have been the result ? Instead of a recovery for the excess only, the plaintiffs would have obtained judgment for the full amount of the drafts; leaving the defendants to look after their cotton in Savannah. The last thing, perhaps, they would desire to do.
Well, suppose it be conceded that the temporary administrators had no right to sell the cotton, and they certainly *276could derive no authority to do so from their office; still, if sued, they could plead and prove that the proceeds of the cotton was properly applied; and no' recovery could be- had against them. Of what avail, then, is the complaint that they had no right to sell defendants’ cotton? There was the strongest moral obligation to appropriate this cotton to the payment of these drafts; and we confess we are unable to appreciate the merits of this defence.
If, as it is stated outside of the record, there wras unreasonable loss in the re-weighing of this cotton, that would depend upon the accuracy of the ware-house men at Griffin, and Mr. Sullivan at Savannah; and this was a legitimate subject of enquiry.' I need not remark on the loss in the weight of cotton, especially that which is picked and packed early in the season. Between this country and Liverpool it is said to amount sometimes to 60 or 70 lbs. on the bag, 'notwithstanding the transportation is by water. When forwarded by land the difference is greater.
Upon the whole, we see no reason for disturbing this judgment.
Judgment affirmed.