delivered the opinion of the court.
This is a bill in equity, by which Rogers seeks to recover of Durant and seven others, as copartners under the name of James W, Davis & Associates, the amount due upon several drafts, some drawn, and. some accepted of promised 'to be accepted, by that firm, and all allegеd to have been held by the plaintiff and lost without his fault after maturity.
The defеnce of Durant is*twofold: First, to the jurisdiction, because there is no-sufficiеnt proof of the loss of the drafts; second, to the merits, becausе he was never a member of the firm of James W. Davis & Associates. The court below, while inclining to the opinion that it had no jurisdiction, did not decidе, the case upon that ground, but upon the merits, and dismissed the bill generally.
Thе testimony introduced to show the loss of the drafts, construing it most favorably fоr the plaintiff, proves no more than this: In a former suit in the Supreme Court of New York to wind up the.affairs of the firms of James W. Davis & Associates and of Davis, Sprague & Company, a reсeiver, was appointed, and the claims of creditors, including the plaintiff’s, were presented to a referee appointed by the court, and by him reported to the court, and a dividend ordered and paid in part thereof. The drafts in question were handed by the plaintiff to Steiger, his attorney in New York, to be filed before the referee, and wеre so filed, and were afterwards delivered by the referee to thе receiver; neither the plaintiff nor Steiger had since seen them оr known where they were; and Steiger had applied, for them to the rеceiver, to his clerk, to the referee, and to Bell, Durant’s attornеy in New York, and believed, without any foundation beyond his own suspicion, that they were in Bell’s possession.
The original papers presented to the referee would properly ■ be returned with'his report to the files of the court which appointed him. Yet no search appеars to. have been made in those files, nor any applicatiоn -presented to that court for *646 the delivery of the drafts to the plаintiff or his attorney. The plaintiff, having made no inquiry in the place in which the drafts would be most likely to be found, utterly fails in his attempt to prove their loss.
There being no sufficient evidence of loss, there can be no doubt that the case is one within the exclusive jurisdiction of a court of law; аnd it becomes unnecessary to consider the varying decisions in England and in this country upon the question under what circumstances a court of еquity has jurisdiction of a suit upon a lost bill or note; or the voluminous proоfs contained in the record upon the question whether Durant was a mеmber of the firm of -James W. Davis & Associates, a question of which, for the rеason already given, we have no jurisdiction in this case, and which, being а pure question of. fact, can never be brought to this court in any future аction at law.
The decree of the Circuit Court, dismissing the bill generally, might be сonsidered a bar to an action at law, and should therefore be reversed, and the cause remanded with directions to enter a decree dismissing the bill for want of jurisdiction, without prejudice to the right of the рlaintiff to sue at law.
Horsburg
v. Baker,
Decree accordingly.