Richard Garth, C.J.
1. In this case, we think that the judgment of the Court below should be affirmed, upon the ground that the Court had no jurisdiction to entertain the suit.
2. The plaintiff's were, at the commencement of the year 1875, creditors of the defendants Morrell and Lightfoot to a very large amount. Morrell and Lightfoot were the owners at that time of certain land in the districts of Backergunge and Jessore, Morrell being entitled to a 14-anna share, and Lightfoot to a 2-anna share, in those lands. Morrell and Lightfoot were indebted, at that time, to several creditors, and the defendant Lightfoot, had left this country, and given Morrell certain powers-of-attorney to act for him during his absence. In this state of things, on the 14th of May 1875, Morrell, acting not only for himself, but professing to act for Lightfoot also, under the powers-of-attorney, executed in Calcutta a deed by which he conveyed the said lands (amongst other property) to the defendants Wordie and Longmuir, in trust, to call in such part of the property as consisted of money, and to sell and convert into money all the rest of the property, including the said lands ; and, out of the money so to be realised, to pay the creditors of Morrell and Lightfoot, either in full or rateably, as far as the money would go.
3. The defendants Wordie and Longmuir took upon themselves the trusts of the deed, and appointed Morrell their agent, to manage the property until the sale under their direction. The trustees, however, found considerable difficulty in carrying out the trusts; and the defendant Lightfoot, upon hearing of the deed, repudiated the transaction altogether, and denied, and still denies, Morrell's authority to deal thus with his share of the property under the powers-of-attorney. Upon this, Wordie and Longmuir were unwilling to proceed any further in the execution of the trusts, and were desirous of being discharged from their responsibilities under the trust deed; whereupon the plaintiff's, as creditors largely interested under that deed, instituted this suit, praying that the trusts of the deed might be carried into effect, that the trustees might be relieved from the execution of the trusts, and that a Receiver or Manager might be appointed to carry out the trusts under the order of this Court.
4. To this suit an objection has been raised, on behalf of the defendants Morrell and Lightfoot, that the Court has no power to entertain such a. suit, inasmuch as it is a 'suit for land' within the meaning of the 12th clause of the Charter, the land being situated in the mofussil.
5. The plaintiffs contend that this is not so; that the lands, which are sought to be affected, are only a portion of certain partnership properties belonging to Morrell and Lightfoot; and that the object of the suit is merely to enforce the carrying out of a trust created by Morrell for the joint benefit of Lightfoot and himself, and in order to effect a beneficial arrangement with their joint creditors.
6. In support of this view, several authorities have been cited on behalf of the appellants, all founded more or less upon the principle laid down by Lord Hardwicke in Penn v. Lord Baltimore 2 White and Tudor's Eq. Cas. 4th Ed. 923 and in the notes upon that case, that Courts of Equity will exercise their powers in personam, in the case of trustees and others resident within their jurisdiction, to oblige such persons to perform trusts, to carry out contracts, and to obey the rules of equity, even where the subject-matter of the trust, or contract, or equity, may be land situate out of their jurisdiction; see Bagram v. Moses 1 Hyde 284 and Paget v. Ede L.R. 18 Eq. 118.
7. But those cases are all more or less distinguishable from the present, which depends not so much upon the jurisdiction generally exercised by Courts of Equity, as upon whether this suit is brought substantially 'for land;' that is, for the purpose of acquiring title to, or control over, land, within the meaning of a particular clause in the Charter; and we think, having regard to what is the real object of the suit, and to what are the rights and contentions of the respective parties, it is impossible to say that this is not substantially a suit for land.
8. The express purpose of the suit is to compel the sale of the whole of the land conveyed by the trust deed, including Lightfoot's share. But then Lightfoot objects that his share is not subject to the trust at all, because Morrell had no power, or authority, to deal with it; and, therefore, one of the main points which the plaintiffs seek to establish, and which they ask the Court to decide, is the title of the trustees to Lightfoot's share. Surely, in that respect the suit is, strictly speaking, one 'for land.'
9. But then the plaintiffs say that is not the sole, or primary, object of the suit; and that, as regards Morrell's share in the property, which is by far the largest portion of it, there is no question as to the trustees' title. But it was repeatedly, during the argument, put to the learned Counsel for the plaintiffs, and distinctly admitted by them, that it would be impossible for the Court to deal effectually with the case, unless Lightfoot's share were included, as well as Morrell's.
10. That being so, and the suit being confessedly instituted for the purpose of dealing with the lands in their entirety, and these lands being by far the larger portion of the partnership assets, we are of opinion that this is in substance a suit for land within the meaning of the clause in question, and that the judgment of the Court below was perfectly correct.
11. The appeal will therefore be dismissed with costs on scale No. 2.