discovery; as that the subject-matter is not cognizable in any municipal court, or only in such a court or tribunal as equity declines to assist; as where the proceeding for which the discovery is desired is of a criminal nature, as an indictment or information; or such proceeding is not before a regular tribunal for administering justice, but before judges of the parties' own choice, as arbitrators; or the tribunal itself has full power of obtaining the discovery, as where the facts depend on the testimony of witnesses, who can be compelled by the court before which the question is depending, to give evidence: (Mit. 185, 186; Sto. 1495.)

II. That the value of the subject-matter is beneath the dignity of the court, as under 40s. a year, or 201. principal, except in cases of charity and quit rents, in which it seems the smallness is of no consequence: (1 Sm. Ch. Pr. 157; Mit. 110, n.)

III. That the plaintiff has no interest in the subject, or none that entitles him to call on the defendant for a discovery; as where the plaintiff is only heir apparent, or he assumes to sue as executor or administrator when he is not, or in some other character which does not belong to him, or the defendant is not answerable to the plaintiff, but to some one else who has a right to call for such discovery: (Mit. 187; Sto. 1489, 1490.)

IV. That the defendant has no interest in the subject, so as to entitle the plaintiff to institute a suit against him, even for the purpose of discovery, as that he is a mere witness, in which case there can be no necessity for asking the assistance of equity. If, however, fraud can be shown, this defence cannot be used; as where an attorney assisted a client in obtaining a fraudulent deed, or an engineer who colluded with the defendant (18 L. T. 95); and it seems that the officer of a corporation can be made a party to a bill of discovery against the corporation, because such corporation being an artificial person, cannot be compelled to answer on oath, or otherwise than under their common seal: (Mit. 188, 189; Sto. 1489, 1501.)

V. Although both plaintiff and defendant may be

interested in the subject, yet that there is not such priority of title between them as gives the plaintiff a right to the required discovery; for a person is only entitled to a discovery of facts and documents necessary to support his own title, or that under which he claims, and not to pry into that of his adversary; and therefore, the general rule is, that where the defendant's title is not in priority, but inconsistent with the plaintiff's, the defendant is not bound to discover the evidence of his claim: (Sto. 1490; Mit. 190.)

VI. That the plaintiff is not entitled to the discovery by reason of some personal disability, as attainder, outlawry, &c.

VII. That the discovery, if obtained, cannot be material, either for the purpose of supporting the prayer of the bill, or for any other suit actually instituted or capable of being instituted. In general, if it can be supposed, that the discovery may in any way be material to the plaintiff in the support or defence of any suit, the defendant must make the discovery : (Mit. 192, 193; Sto. 1489.)

VIII. That the situation of the defendant renders it improper for this court to compel a discovery, either because such discovery may subject the defendant to pains or penalties by our (not foreign) law (20 L. J. Eq. 417); or to some forfeiture or something of the same nature, or may hazard his title in a case where in conscience he has at least an equal right with the plaintiff, though such right may not be clothed with a perfect legal title, as if a bill charges anything, which, if confessed, would subject the defendant to a criminal prosecution or to penalties, as an usurious contract, maintenance, champerty, or simony; the plaintiff, however, where he is alone entitled to the penalties, can prevent such a defence by expressly waiving them; and where the penalty arises from the agreement of the defendant he cannot refuse to discover, nor in cases of fraud or conspiracy, or of a statutory prohibition against resisting a discovery, or an implied or express agreement to such effect.

Where the defendant has in conscience a right equal to that of the plaintiff, as where he is a bonâ fide purchaser for valuable consideration without notice, and has paid his purchase money, no discovery will be compelled; on the same principle a jointress is entitled to refuse discovery respecting her jointure deed, without the party seeking the discovery is able and willing to confirm it, and does so confirm it : (Sto. 1054; Mit. 236.)

IX. That the policy of the law exempts the defendant from the discovery; thus, a married woman will not be ordered to disclose facts to charge her husband; nor will a counsel, attorney, solicitor, or arbitrator, be obliged to discover facts derived by means of the confidence which was placed in him as such: (Mit. 288.) Communications between solicitors and clients, both in contemplation of, as well as pending litigation, and with reference thereto, are protected; and so are those which were subsequent to the arising of the dispute, if followed by litigation, though not in contemplation of, or in reference to litigation, as well as cases or statements of facts, made in the client's behalf by or for his legal adviser on the subject-matter after litigation commenced, or in contemplation thereof, on the same subject, with other persons for ascertaining the same right: (3 Hare, 122.) This privilege is extended to persons acting as interpreters or agents between the client and legal adviser, but not to mere agents or stewards, nor to physicians or medical or spiritual advisers; and it is more the privilege of the client than that of the legal advise (Dan. Ch. Pr. 526 to 531.)

Besides that discovery and production of documents which the Court of Chancery enforces in aid of proceedings in its own and other courts, it frequently also compels production for purposes other than that of litigation, in favour of parties who are interested in such documents, and require an inspection to enable them to fully exercise the rights which they may have thereunder. Thus, where there are several persons who are entitled to property under one settlement, and one has

possession of it, he will, as a general rule, be compelled to permit the others to inspect it; and so where an estate has been divided on partition, and all the title deeds have been handed over to one, he must allow the others, whenever necessary, a proper inspection: (Sug. V. & P. 467.)

The same rule also generally applies to all cases in which there are several joint or other part owners of property, and also to cases where there are various parties, who have successive interests in the same property, for here the party holding the deeds, does so both for the benefit of himself and the others, whose titles are thereby evidenced: (Sug. V. & P. 469.)

A party who applies for inspection of title deeds should always show some good reason or necessity for his application, as that he requires the inspection for the purpose of enabling him to sell, mortgage, lease, or otherwise dispose of or deal with his rights or interests in the property to which they relate, and it is not clear whether an inspection would otherwise be ordered. The holder of the deeds, however, should not, without some special ground, ever refuse any reasonable and proper inspection to parties who are interested thereunder, or he may find himself compelled by the court, and saddled with the costs of the proceedings; neither agents or mortgagees, however, are in general justified in allowing an inspection of deeds, without the assent of the principal or mortgagor: (Sug. V. & P. 468.)

SPECIFIC PERFORMANCE.

The commissioners suggested in their report, that it might not be advisable to interfere with the jurisdiction of the Courts of Equity, in cases in which upon peculiar considerations of doubtful justice, specific performance was granted, though the legal right was not complete at the commencement of the suit; but only to give Courts of Law the power of enforcing specific performance in the same cases in which damages simply can now be obtained in those courts. To carry out this suggestion, sect. 68 and subsequent ones were in

troduced into the Common Law Procedure Act, 1854 (see note on sect. 68, supra, p. 88.) The mode of procedure is clearly pointed out in the different sections, and will scarcely present any difficulty; and assuming the jurisdiction of the Common Law Courts upon specific performance, to be confined to cases in which the plaintiff has a legal right of action, the principles on which Courts of Equity proceed in granting specific performance in such cases, will at once be considered.

It is to be observed that the plaintiff may claim in his declaration, together with the demand to be recovered in the action or separately, a mandamus to the defendant to fulfil the duty required. There is reason why this option should be given, for in many cases it will be desirable to sever the proceedings in the action from those on the mandamus, as will be seen from the nature of the relief that can be afforded on a bill for specific performance; for if, pending a suit for specific performance of an agreement, for instance, of a demise of quarries, a part of the subject-matter is abstracted, compensation, therefore, may be obtained by a supplemental bill: (Nelson v. Bridges, 2 Beav. 239.)

As a general proposition for breaches of contract, and other wrongs and injuries cognizable at law, Courts of Equity do not entertain jurisdiction to give redress by way of compensation or damages, where these constitute the sole objects of the bill; for wherever the matter of the bill is merely for damages, and there is a perfect remedy therefore at law, it is far better that they should be ascertained by a jury than by the conscience of an equity judge: (Story Eq. Jur. s. 794.)

But where compensation or damages are incidental to other relief, as, for instance, where a specific performance is decreed upon the application of either party, with an allowance to be made for any deficiency as to the quantity, quality, or description of the property, or for any delay in performing the contract, it seems clear that the jurisdiction properly attaches in equity, for it flows, and is inseparable from the proper relief. So where a bill is brought by the vendor