21 June 1807

(2)

II. Litigation

III. Def t malâ fide

In the case where the service demanded at the charge of the defendant consists in the making of satisfaction, by payment of money or otherwise for evil in the shape of loss, or any other shape, sustained or about to be sustained by the plaintiff under the notion of mesne profits may be comprised whatsoever advantage may be obtainable from the staving off the time of the rendering such service: and this whether the loss consisted in the absolute destruction of the subject matter or only in its transference into wrong hands, and whether having by misconduct on the part of the defendant, or on the part of a third person, or by pure accident for its cause: as where the matter in dispute is, by which of them the plaintiff or defendant, a loss occasioned by neither of them shall ultimately be sustained.

In both cases - viz. where the effect of delay is to continue a man in the possession of a growing gain, and where the effect of it is to preserve him, for so long from a loss, the delay is a source of intermediate advantage to him - of profit, if mesne profit be understood as synonymous to advantage: and supposing the same representation of the advantage to be the same in both cases, the advantage, by avoiding the obligation of disbursing it, is even greater than the advantage of receiving it: to a man who is worth £1000, it is more material to avoid payment of £500 out of it for a twelvemonth than it would be to have an additional £500 during that same time in his hands.