
    ATKINSON v. ADAMS et al.
    (Circuit Court, E. D. Pennsylvania.
    July 14, 1908.)
    No. 38.
    Discovery — lx Equity — Parties Entitled to Discovery.
    Where the evidence already taken in a suit for specific performance shows that complainant'is not entitled to the relief prayed for, an order will not be made to compel the defendant to make discovery.
    In Equity. On motion for order on defendants to make discovery by answering interrogatories.
    Henry H. Belknap and E. Spencer Miller, for complainant.
    Edward Harvey and Read & Pettit, for defendants.
   J. B. McPHERSON,

District Judge. In my opinion, this motion must be refused. The testimony already taken — which the parties have agreed to submit in order to obtain a decision whether the complainant is entitled to discovery — proves to my satisfaction that a proper legal tender was neither made nor waived on March 26, 1906. If this is correct, the present bill which asks for specific performance, or, in the alternative, for damages, has no sufficient ground, and discovery should be denied.  