after stating tbe case: There is no rule of law wbicb requires tbe plaintiff, before bringing this action, and upon tbe special facts of tbe case, to produce and deposit tbe stock. If any such action on her part as to tbe deposit of tbe certificate in court, so tbat it could be surrendered wben tbe judgment is paid, was necessary as a condition precedent to her having judgment upon her note, tbe admitted fact that1 tbe certificate bad been lost, and tbat indemnity bonds bad been given, *19as ordered by tbe court, supplied tbe-place of sucb production and tender of tbe original certificate, or a new certificate as a substitute for it. Sbe did not bave tbe possession of tbe stock, under tbe agreement, but Mr. Pennington, as trustee, bad it, and received it at tbe special instance and request of Mr. Bridgers, tbe endorser, and tbe defendant, witb tbe concurrence of tbe bank. Sbe was not trusted witb it, and is not responsible for its keeping and production. It would be a bard measure to impose sucb a duty or obligation upon ber when tbe necessary means and opportunity of producing it was taken from ber by an agreement between tbe other parties. Sbe acquired a benefit by tbe deposit of tbe stock as collateral, but tbis was done under tbe law, and by no provision in tbe agreement. Tbe defendants could not tie ber bands and tben ask that sbe be required to do wbat, by tbeir own action, tbey bave prevented ber from doing. TJnder tbe terms of tbe agreement between defendants, tbey were required to pay tbe note and take it to tbe trustee, Pennington, and demand tbe collateral. If be could not produce it, because be bad lost it, it becomes a matter between bim and tbe other defendants, and Mrs. Pdwell was placed in no default by reason thereof. ¥e think tbis clearly tbe law, and, moreover, is right and just.
Although no authorities were cited to us, we are of tbe opinion that tbe foregoing views are fully sustained by Bateman v. Hopkins, 157 N. C., 470. As said substantially in that case, How can tbe defendants bave been hurt if tbey are fully assured by tbe indemnity bond required that no loss can come to them? There is another principle of that case that applies strongly here, which is, that if defendants’ own laches bave prevented tbe plaintiff from complying witb tbeir present demand, tbe law affords them no relief. It will simply proceed to do justice according to tbe facts, and not give to tbe defendants a relief which has been forfeited by tbeir own conduct in tbe matter. If tbey preferred tbe method of depositing tbe collateral witb Mr. Pennington, and tbe certificate has been lost by bim, tbey must take tbe consequences, as it would be contrary to all our notions of justice to visit upon Mrs. Powell, an innocent party, any part of tbeir misfortune, which tbey solely have brought upon themselves. We do not say that defendants were negligent, but that Mrs. Powell, tbe plaintiff, was not.
If tbe collateral bad been deposited witb tbe plaintiff, tbe question might be different. Why did not tbe defendants bave new stock issued and deposited witb tbe trustee? Tbis is not explained.
There was no error.
Affirmed.