Edwin A. Smith Real Estate Co. v. American Surety Co. of New York

Superior Court of Rhode Island

Edwin A. Smith Real Estate Co. v. American Surety Co. of New York

3 R.I. Dec. 165

CourtSuperior Court of Rhode Island

DecidedJune 4, 1927

DocketEq. No. 8387

StatusPublished

This text of 3 R.I. Dec. 165 (Edwin A. Smith Real Estate Co. v. American Surety Co. of New York) is published on Counsel Stack Legal Research, covering Superior Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Edwin A. Smith Real Estate Co. v. American Surety Co. of New York, 3 R.I. Dec. 165 (R.I. Ct. App. 1927).

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Opinion

RESCRIPT

TANNER, P. J.

This is a bill in equity. brought by the assignee of a receipt .for a certificate of deposit which -was pledged to the respondent. The bill is heard upon demurrer'.

The main ground of demurrer is that there is an adequate remedy at law. It is no doulbt true, as shown by the respondent’s brief, that many courts have relinquished equity’s jurisdiction in such cases. The original jurisdiction in such cases, however, was in equity and involved a trust relationship. While a concurrent jurisdiction has arisen at law, this Court has not relinquished its original and concurrent jurisdiction, especially in a case like the present one where the equity jurisdiction has first been invoked.

Doherty vs. McBride, 2nd R. I. Rescripts of Superior Court, p. 41.

The demurrer upon this point is therefore overruled.

The demurrer upon the ground that there is an estoppel in pais because of the .respondent’s failure to notify the assignee of said receipt for the certification of deposit, of the respondent’s claim to apply the proceeds of the certificate of deposit to obligations of Radding other than those arising upon the respondent’s bond, we do not think it necessary to determine at present.

The demurrer upon the ground that an estoppel in pais ■ should not be made upon information and belief seems to be -supported by the authorities of the respondent. There is no opposing authority-that has -been cited and the demurrer upon this ground is sustained.

For Complainant: Hinckley, Allen, Tillinghast and Phillips. For Respondent: Comstock & Canning.

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RESCRIPT

TANNER, P. J.

This is a bill in equity. brought by the assignee of a receipt .for a certificate of deposit which -was pledged to the respondent. The bill is heard upon demurrer'.

The main ground of demurrer is that there is an adequate remedy at law. It is no doulbt true, as shown by the respondent’s brief, that many courts have relinquished equity’s jurisdiction in such cases. The original jurisdiction in such cases, however, was in equity and involved a trust relationship. While a concurrent jurisdiction has arisen at law, this Court has not relinquished its original and concurrent jurisdiction, especially in a case like the present one where the equity jurisdiction has first been invoked.

Doherty vs. McBride, 2nd R. I. Rescripts of Superior Court, p. 41.

The demurrer upon this point is therefore overruled.

The demurrer upon the ground that there is an estoppel in pais because of the .respondent’s failure to notify the assignee of said receipt for the certification of deposit, of the respondent’s claim to apply the proceeds of the certificate of deposit to obligations of Radding other than those arising upon the respondent’s bond, we do not think it necessary to determine at present.

The demurrer upon the ground that an estoppel in pais ■ should not be made upon information and belief seems to be -supported by the authorities of the respondent. There is no opposing authority-that has -been cited and the demurrer upon this ground is sustained.

For Complainant: Hinckley, Allen, Tillinghast and Phillips. For Respondent: Comstock & Canning.

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Bluebook (online)

3 R.I. Dec. 165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edwin-a-smith-real-estate-co-v-american-surety-co-of-new-york-risuperct-1927.