Wilkes v. Wilkes

The Vice-Chancellor :

The object of this bill is to have the memorandum or certificate given the complainant to Horatio Wilkes and now held by the defendant as his administrator delivered up to be cancelled—no other relief is asked.

It is clear, from the statements in the bill, that no right of action at law or claim in equity can exist upon this instrument in favor of Horatio or his representatives against the complainant. An action at law was once brought and discontinued; and it is not probable another experiment of that sort will be made. And, yet, it by no means follows that the complainant is entitled to have the paper delivered up : for it may be important—at least of some use to the defendant to hold and be able to produce in case there should, hereafter, be an overhauling of the transaction by the complainant or a claim set up by him for an account.

That this court possesses a jurisdiction to cause written instruments to be delivered up is very certain. But it will be exercised only under special circumstances : See Hamilton v. Cummings, 1 J. C. R. 517.

Here, the complainant alleges his belief that the defendant intends to harrass him with another suit at law after witnesses are dead, &c.—not that the defendant has ever threatened him with another. But, to obviate this danger, the complainant can perpetuate testimony. He is apprehensive, moreover, that the defendant will injure his credit by showing this paper as an evidence of debt against him. It is only a mercantile credit that could be injured in this way; and, yet, the bill does not allege a case of mercantile or any other credit which is liable to be injured.

The demurrer is well taken; and must be allowed, with costs.