Upon the argument of the demurrer, it was insisted that the bill could not be sustained, because it prayed neither for an injunction, nor for a discovery. The counsel for the plaintiff admitted that a discovery was not necessary, and that he did not seek a discovery; but he insisted that the bill could be sustained as a bill for an account alone. It may well be doubted whether, upon this demurrer, the court can act upon the admission of the plaintiff’s counsel, that no discovery is required, provided the bill itself, upon its face, requires such discovery; and my impression is, that it cannot. I shall, therefore, consider the case as made by the bill.
There is no special allegation that a discovery is necessary, and there are no special interrogatories annexed to the bill. It was. therefore, insisted, that no discovery could be required under it. The 40th rule in equity, while in force, relieved the defendant from making any discovery under a bill framed like the one in the present case, and containing no special interrogatories; but this rule was expressly repealed by the 93d rule, which provides that “it shall not hereafter be necessary to interrogate a defendant specially and particularly, upon any statement in the bill, unless the complainant desires to do so, to obtain a discovery.” 1 am inclined to think that, under this rule, the plaintiff is entitled to an answer, upon oath, to all the material allegations of his bill; and that it is, therefore, properly a bill for a discovery and account, like the bill in the case of Nevins v. Johnson [Case No. 10,130]. If this be so, the case last mentioned, and the cases of Sickels v. Gloucester Manuf’g Co. [Id. 12,841] and Imlay v. Norwich & W. R. Co. [Id. 7.012] would seem to be decisive of this ease, and to require that the demurrer should be overruled.
There was another ground of jurisdiction insisted upon by the plaintiff’s counsel, which, to say the least, is deserving of consideration. It was urged that, in an action at law for the infringement of a patent, the plaintiff can recover only the actual damages which he can prove he has sustained in consequence of the infringement (Hall v. Wiles [Case No. 5,954]; Buck v. Hermance [Id. 2,082]; Mayor, etc., of New York v. Ransom, 23 How. [64 U. S.] 487); while, in equity, he is entitled to recover the full amount of the profits made by the defendant by reason of the infringement (Livingston v. Woodworth, 15 How. [56 U. S.] 546; Dean v. Mason, 20 How. [61 U. S.] 198). It may often happen that the profits of the infringing defendant are much greater than any damages the plaintiff could prove he had sus-*273tamed; aud. in such eases, it could liardiy be said that the plaintiff had a full and adequate remedy at latv. In such a case, as, in matters of account, courts of equity possess a concurrent jurisdiction, in most cases, with courts of law (Mitchell v. Great Works Milling & Manuf’g Co. [Case No. 9,662]) it would seem that there could be little doubt of the jurisdiction of a court of equity to order an account. But, without deciding this question, and upon the authority of the three cases first above cited, the demurrer is overruled, with costs. See. also. Potter v. Dixon [Id. 11,325]; Livingston v. Jones [Id. 8,414]; Jenkins v. Greenwald [Id. 7,270]. The decree upon the demurrer must be for the plaintiff, and will be final, unless the defendants, within thirty days after notice of the order overruling the demurrer, file their answer to the bill, and pay the costs occasioned by the demurrer.
[See Cases Nos. 11,004, 11,008, and 11,012.]