Endorsed, "I, John Chapman, deputy marshal of the Vice Admiralty Court of the island of Malta, and the territories thereunto belonging, do hereby certify that the within original monition was personally served on the within-mentioned W. Robertson, by shewing to him the within monition under seal, and by leaving with him a true copy thereof. And I do also certify that the aforesaid monition was not served on the within-mentioned George Miller Bligh, by reason of his having left this island some time ago, and that he has not at present returned to Malta. Witness my hand this 8th day of November 1810, &c. "Madonna della Lettera, &c. Francisco Michali, M'. This 14th day of November 1810, appeared personally John Chapman, of the city of Valetta, gent., deputy marshal of the Vice Admiralty Court of the island of Malta and the territories thereunto belonging, and made oath that the contents of the certificate endorsed on the back of the annexed monition, and to which he hath subscribed his name, were and are true. "Sworn before me, "Robert Forrist. "On Monday the 28th November 1810, before, &c., Fenton returned the monition duly executed, and prayed an attachment. Jackson appeared for Mr. W. Robertson, and alleged him not to be the agent of his Majesty's ship Glatton, and that he was not in possession of any effects belonging to the said ship, and prayed him to be dismissed from all observance of justice in that matter. "All and singular which premises, as they have been drawn up and passed in our aforesaid Vice Admiralty Court, so we have thought fit that the same should be exemplified unto you; and we do attest that the same do agree, having been faithfully compared with their respective VOL. VIII. A a 1832. OBICINI V. BLIGH. 1832. OBICINI V. BLIGH. respective originals, remaining on record in our court aforesaid. In witness whereof we have caused the seal of our aforesaid Vice Admiralty Court to be hereunto affixed. Given at La Valetta, Malta, this 8th day of May, in the year of our Lord 1828, and of our reign the ninth. "J. Locker, Registrar." A witness, who had practised for many years in the Vice Admiralty Court at Malta as a proctor, stated, that the usual course of proceeding in prize causes is, that the ship's papers and affidavits are first brought in before a surrogate, and that the ship's papers disclose who are the owners; after which a monition is directed to be issued, calling upon all persons to appear and make known their claims. This monition is usually stuck upon 'Change. After such monition is returned, the claim is generally made. It is a claim with an affidavit annexed in support of it; and such claim and affidavit shew in whose behalf and what right the claim is made. The claim and affidavit in the present cause are not comprised in the document produced. This cause is taken up from the admission of the claim. The witness stated he was not aware there were any other proceedings in the progress of the cause besides those which appeared in the document produced; and that he believed there were no steps taken before the first which was entered on the document produced, but that it did not contain a transcript of all the acts of court: there were other acts of court, such as assigning a proctor for the captors; returning the monition; and the affidavit and claim. He further stated, that he thought the document contained the whole of the proceedings from the monition, and that there would be no other formal adjudication beyond that which appeared on the document produced; that the the monition set forth in the document produced is the last monition, and is served on the agent, if the party cannot be found, and there be an agent regularly appointed after service of the last monition, an attachment issues if the money be not paid; but an attachment does not issue without service of the last monition on the party, or an agent regularly appointed by him. Before the claim is put in, the captain, mate, and principal officers are usually examined. The Glatton was paid off in England in October 1809. Some evidence was given to shew that this judgment was still unsatisfied; and that point was left by the Chief Justice to the jury, who found for the Plaintiff. It was agreed that either party was to be at liberty to refer to the proceedings; and the question for the opinion of the Court was, Whether the Plaintiff was entitled to recover? If the Court should be of opinion that he was, then the verdict was to stand; if otherwise, judgment of nonsuit was to be entered. Stephen Serjt. for the Defendant. (a) There are five objections to the Plaintiff's recovering in this action. First, it nowhere appears upon this transcript that the Defendant had notice of the proceedings in Malta ; on the contrary, it may be inferred, as in Buchanan v. Rucker (b), and Cavan v. Stewart (c), that the Defendant was never within the jurisdiction of the Court. Now in Buchanan v. Rucker, which was an action upon a judgment obtained against the defendant in the island of Tobago, the Court held the proceedings invalid, because it did not appear that the defendant had ever been in the colony, had property there, or was subject (a) For the sake of avoiding repetition, the argument for the Defendant is stated first, although the Plaintiff's counsel commenced as usual. (b) 9 East, 192. 1832. OBICINI ບ. BLIGH, 1832. OBICINI V. BLIGH, to the jurisdiction of the colonial court; and in Cavan v. Stewart, where the defendant was sued on a Jamaica judgment, Lord Ellenborough said, that it ought to have been proved that, at least, he was once in the island of Jamaica. Secondly, the transcript offered by the Plaintiff of the proceedings in the Vice Admiralty Court is a document too imperfect for this Court to proceed on. If the Plaintiff was not bound to set forth the whole of the proceedings, at least he should have set forth the parts material to his own case; as, for instance, the appearance of the Defendant or the appointment of a proctor to act for him: above all, the judgment of the Court, which is nowhere stated. It lies on the Plaintiff to make the proper extracts, or to shew the whole of the proceedings, and that they are conclusive against the Defendant. Plummer v. Woodburne. (a) Thirdly, it does not appear that these proceedings were final in the Vice Admiralty Court. According to the definition in Brown's Civil Law, p. 494., a sentence is interlocutory where a further sentence is to be expected. Upon this transcript it appears that many points remain to be adjudicated, and there is no finding that any precise sum is due from the Defendant. In Emerson v. Lashley (b) and Fry v. Malcolm (c) it was expressly holden that actions cannot be maintained on a mere interlocutory order. An action on a judgment only lies where a debt or duty can be implied which a court of law can recognise. And in Carpenter v. Thornton (d) the Court held that a contract could not be implied from a decree of a court of equity (in a suit for specific performance) to pay interest on the purchase-money of an estate. Bayley J. said, "The foundation of the suit in equity in this case seems to have been an equitable obligation, on the part of the Defendant, to pay the money. This action, if it can be maintained at all, must be founded upon a legal obligation to pay. The decree in equity merely ascertains that the Defendant is under an equitable obligation to pay; it does not go further, and shew that there is any legal obligation to pay." And Holroyd J. said, " In the case of judgments of inferior courts, and courts not of record, where the law implies a promise to pay, it is to pay a legal debt. Wherever there is a debt at law, the Court will presume that the party promises to do that which the law requires. When the debt is founded upon equitable considerations alone, it may be enforced by the authority of the Court which ordered it to be paid. The law, in such a case, does not imply a promise. There is no instance of an action brought on a rule of Court for payment of money. The mode of enforcing such an order is by attachment, for contempt in not obeying the order of the Court. Now, although that does not absolutely shew that such an action is not maintainable, yet, where no such action has ever been maintained, it lies on the party bringing such action to state a clear principle on which it is maintainable." In Henly v. Soper (a) there was a balance of account and an agreement to refer, from which a promise to pay might be implied, and Lord Tenterden said, that the action would lie for the balance of an account, but not on every order of a court. In Smith v. Whalley (b) there was also an agreement. Fourthly, it nowhere appears upon the transcript in what right Mattei acted, or that he had any interest in the subject of the suit. It is rather to be collected that he was a mere agent of the government whose rights 1832. OBICINI V. BLIGH (a) 2 Mann. & Ry. 153. (b) 2 B. & P. 482. A a 3 had |