116 Ark. 490 | Ark. | 1915
(after stating the .facts).
In an extensive case note to 48 L. R. A. (N. S.) 648, the jurisdiction of courts of law and equity in actions on 'lost instruments is discussed. In some of the States courts of law have enlarged their jurisdiction by their own acts and in other States such jurisdiction has been conferred by statute.
Article 7, section 15, of the Constitution of 1874, provides that until the General Assembly shall deem it expedient to establish courts of chancery, the circuit courts shall have jurisdiction in matters of equity. By this is meant such jurisdiction as a court of chancery properly exercised at the time of the adoption of the Constitution. The jurisdiction of courts of equity under our Constitution is fixed and permanent and its jurisdiction oan not be enlarged or diminished. Gladish v. Lovewell, 95 Ark. 618; Hester v. Bourland, 80 Ark. 145; Walls v. Brundidge, 109 Ark. 250.
Inasmuch, as courts of equity originally had jurisdiction in actions on lost instruments, even if courts of law were given jurisdiction in such cases by statute or otherwise, such action would not deprive courts of equity of .the jurisdiction which they originally had.
Our courts and the courts of many other States have held that a negotiable instrument payable to the order of a particular perspn but not endorsed can not be made the issue of an action against the maker except in the right of the payee. Case note to 48 L. R. A. (N. S.) at page 655, and in Lewis Mercantile Co. v. Harris, 101 Ark. 4, this court held that the' drawee of a draft payable to o‘rder who pays upon a forged or unauthorized endorsement does so at his peril.
It is, therefore, insisted'by counsel for plaintiff that the instrument sued on, being payable to the 'order of the plaintiff, and not having been endorsed, by him at the time it was lost, only the plaintiff could sue on it and, such being the case, no indemnity is needed. . Hence they contend that in all cases where the. lost instrument, though negotiable, is payable to the order of the payee and unendorsed it does not come within the rule requiring indemnity to be furnished.
On the other hand, it is contended by counsel for the defendant that the maker upon payment of the instrument has a right to its possession as a voucher of its payment and that this right should not be taken from him without an equivalent.
Again, they contend that it piay be subsequently ascertained, that the instrument had, been endorsed by the plaintiff and that it had passed into the hands of an innocent purchaser before maturity and that it would thus be forced to pay the instrument again because the holder thereof, not being a party to the action, would not be concluded by the judgment.
It follows that the decree will be affirmed.