Report No. 63
7.4. Juristic importance.-
The proviso is, thus, of considerable juristic interest. There is a very clear statement of the principle by Sir Robert Phillimore, in The Northumbrian.1 Distinguishing the authorities cited in support of the proposition that the right to award damages depended solely on the Civil Procedure Act, 1833, sections 28 and 29, and that the Admiralty practice was erroneous as being at variance with the common law both before and since the passing of the statute, Sir Robert Phillimore said:-
"But it appears to me quite a sufficient answer to these authorities to say, that the Admiralty, in the exercise of an equitable jurisdiction,2 has proceeded upon another and a different principle from that on which the common law authorities appear to be founded. The principle adopted by the Admiralty Court has been that of the civil law, that interest was always due to the obligee when payment was not made, ex more of the obligor; and that, whether the obligation arose ex contractu or ex delicto."
1. Northumbria, 1869 LR 3 A&E 6 (10), cited in The Berwickshire, (1950) 1 All ER 699 (702).
2. Emphasis supplied.
7.5. A similar approach is illustrated by a Sitaram v. Wamurad, AIR 1948 Nag 49 (50), para. 6. where it was stated:
"We are of opinion that we are exercising equitable powers in maintenance cases where a charge has been created by a decree."
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