I concur in the conclusion attained by the chief justice, but not upon the reasons assigned by him as to the points hereinafter noticed. Whether Doctor Irby *444took the bacon under a mistake of his duty — and I am disposed to make the most charitable presumption — or took it tortiously, and with a knowledge that he was doing wrong, he is liable, in my opinion, to the extent, that the court below held him responsible under the evidence.
And so, also, as to the cotton with which he was charged. In my judgment, the acts of the legislature did not authorize an administrator to exchange cotton for Confederate bonds, and therefore no title passed to the Confederate States by the contract shown by the evidence of F. W. Siddons.
Hence, when Doctor Irby was appointed administrator de bonis non, it was his duty to take possession of the cotton, and as he did so, and sold it, he is liable for the proceeds of sale. It is true that Doctor Irby, as administrator of the administrator in chief, settled the administration of the latter upon the estate of Jas. M. Bembert, deceased, and in such settlement accounted for the Confederate bonds as so much cash. But he could not in that way discharge his own liability for the proceeds of the cotton sold by him. The evidence as to the number of the bales is somewhat conflicting, but under the rule laid down in Kirksey’s Distributees v. Kirksey’s Adm’r, in MS. at present term, as to the ruling of the probate court upon evidence where the witnesses conflict, I am satisfied to let the ruling of the j'udge of probate stand. In my opinion, it is a grave ques<tion, whether the contract, as proven by the witness, F. W. Siddons, Esq., shows such a sale of any specific cotton as to pass the title to the purchaser. — Brownings v. Hamilton, use, &c., at present term. And if the contract was not an executed one, my opinion is that Confederate bonds is not such a consideration as will support an executory contract of sale. The statute does not authorize such a contract by an administrator as is shown by the evidence of the witness, with whom it was made.