¶1delivered the opinion of the court.
¶2The court below very properly refused the first instruction moved by the defendants.
¶3They had by their answer set up that the plaintiff had sold certain scrip for shares of certain stock, which he held as collateral security, and had appropriated the proceeds of the sale to his own use. They proved those facts (except that the sale had produced a much smaller sum than they had charged) by the testimony of the plaintiff himself. It also appeared in his testimony that he gave Eddy, one of the defendants, and the acting one in the matter, notice of the time and place of sale, and that he, the plaintiff, at the time of the sale of the stock, held other shares of the same stock, and that he could not tell whether the stock so sold by him was the identical shares delivered to him as collateral security or not. The defendants claim that the plaintiff is therefore under an increased responsibility in regard to the stock.
¶4The shares of the stock in question do not appear to have been in any way distinguished or distinguishable from any other similar number of shares of the same stock; all were of equal worth and worthlessness, and the sale of one batch answered the purpose as well as another.
¶5The Circuit Court having given the defendants credit for the proceeds of the sale, and entered judgment for the balance against them, its judgment is affirmed, with ten per cent, damages.