Page:Harvard Law Review Volume 10.djvu/324

298 HARVARD LAW REVIEW. M. R., who decided Cartier v. Carlisle, drew a distinction and re- fused an account, and in Ainsworth v. Walmsley ^ under the same circumstances an injunction was refused. The measure of profits upon an account or of damages in an ac- tion or upon an inquiry as to damages, is the profit made by the defendant upon all goods sold, or the profit which the plaintiff would have made if he had sold the same quantity of goods/^ The court will not be astute in dividing profits for the benefit of a wrongdoer, nor place an undue burden upon the plaintiff in proving his damages. The right to an account may be lost by laches,^ but although the right to an account has been lost by delay, the right to damages will still subsist.'* Fraudulent intent alone, admitted by demurrer, has been held sufficient ground in the United States for an injunction pendente lite^ while in England it has been held that the defendant's fraud- ulent intent was sufficient ground for a perpetual injunction.^ The courts of this country have yet to decide that a plaintiff can prevail, not upon the strength of his own title, but upon the state of his opponent's mind. Oliver R, Mitchell, 1 L. R. I Eq. 518. 2 Stonebraker v. Stonebraker, 33 Md. 252 ; Lever v. Goodwin, 36 Ch. D. i ; Graham v. Plate, 40 Cal. 593; Hostetter v. Vowinkle, I Dill. 329; s. c. Fed. Gas. 6714; Faber v. Hovey, Codd. Dig. 79, 249. 8 McLean v. Fleming, 96 U. S. 45. 4 Drummond v. Addison, 52 Mo. App. 10. s Enoch Morgan's Sons Co. v. Hunkell, 10 Rep. 577 ; s. C. 6 Pat. Off. Gaz. 1092. • Wotherspoon v. Currie, L. R. 5 H. L. 508 ; Thompson v. Montgomery, 41 Ch. D. 42.