As all the equity of the bill sustaining the injunction, is fully denied in the answer, the motion to dissolve the injunction ought to be granted.
The contract upon which this suit arises, was reduced to writing, and is contained in the receipt or acknowledgment given by the defendants, and accepted by the plaintiff. It precludes all misunderstanding and uncertainty, by the full and precise terms in which the agreement is declared. The defendants acknowledge, that they “ hold 430 shares of United States' bank stock, as collateral security for the payment of the note, &c., and that, on payment of the note and interest, they engage to re-transfer the said 430 shares to the plaintiff, or his order, accounting with him for the dividends that shall become payable on the same; and in case the note and interest were not duly paid, they were at liberty to make an immediate sale of the shares, accounting with him for any surplus, and holding themselves responsible for any deficiency.” As the defendants, at the time, carried on the business of stock and exchange brokers, and as the plaintiff dealt with them in that capacity, he should have caused the shares to have been identified, if he intended that they should have been kept distinct and separate from the mass of stock in which the defendants dealt. The shares in question were not defined and designated, so as to be distinguished from other bank shares in the same bank j and if the defendants had always, in their possession and names, and under their control, shares to that amount, during the whole time of credit given by the note, and were ready, able and willing, at all times, to account to the plaintiff for that number of shares, and the dividends arising thereon, whenever he entitled himself to such an account, it is all that he could ask under the contract. The answer is explicit on this point, and while it admits, that the shares in question constituted part of one indiscriminate mass, or fund of stock placed in their names, and subject to their control, and from which they, from time to time, made such transfers *496and appropriations as the exigencies of their business and engagements required; yet, it avers, that there was no time, during the year 1818, in which they were not possessed of shares standing in their own names, at their absolute and rightful control, subject to no contract of sale, to an amount far exceeding the shares deposited by the plaintiff; nor was there any moment at which they would not have been ready, and willing, and able, and rightfully able, without any breach of trust to others, to have transferred the said shares to the plaintiff, upon payment of his note. What colour of equity, then, has the plaintiff to call on the defendants to account for the sale of the like amount of shares, at the highest price obtained during that year ? Nothing could be more unreasonable or unjust. The defendants were not bound to separate 430 shares from the common stock, and mark, or otherwise designate them as the separate property of the plaintiff, inasmuch as the plaintiff had left the shares undefined, and was content to take from the defendants a certificate to return, generally, “ 430 shares of United States’ bank stock.” It is sufficient, under this contract, that the defendants always had the requisite quantity of shares on hand, and the law will presume that the shares so on hand, from time to time, were the shares deposited, because the parties have not reduced the shares to any more certainty. We must take the contract as we find it, and are not bound to enter into a labyrinth of inquiry and accounts to see if we cannot mend it. The plaintiff has no right to call for an account of the profits made on a like number of shares, when the defendants always had a sufficient quantity to comply with the contract, and when the plaintiff is not able to point out which were his shares,
jPothier, in one of his plain and familiar illustrations, supposes the case of a quantity of wheat deposited with another, and in a season of scarcity, the magistrate compels the bailee or creditor to bring that wheat to market, and sell it, he is then responsible for the price of it, which becomes a *497substitute for the pledge in specie. This is obviously just and true; but let us suppose that A. had acknowledged that he had 100 bushels of wheat received into his possession, belonging to B., and which he held as a collateral security, and that the wheat had been mixed in, and constituted a part of one promiscuous heap of 1,000 bushels, in which A. was constantly trafficking, and that all this was in the view and knowledge of the parties, at the time; would not A. have a right to continue buying and selling wheat, and be making constant additions to, and constant substructions from that heap, without being chargeable with selling the wheat of B., so long as he always had, at least, 100 bushels of like quality in his granary, subject to his disposition and control, and ready for B. whenever he had a right to demand it ? Most certainly; and if a person will suffer his property to go into a common mass, in this way, without having put a mark upon it, by which it can be identified, he clearly has no right to ask any thing more than that the quantity he put in should always be there, and ready for him. By just fiction of law, that residuum shall be presumed to be the portion he put in. It may as well be that as any other portion of the heap, and he has no right nor means to gainsay it
Injunction dissolved.