JAN. TERM, 1856. CUMMINS V. RAPLEY. 13th of October, 1848, *to secure [•382 said debt with others. That they had always been ready to pay the same, aocording to the terms of said deed, and thereby offered to do so : praying an injunction against the collection of said judgment, and that petitioner should be compelled to receive the same, only according to the terms of said deed, they offering to comply with the terms thereof. That afterwards, when said first instalment of one-third of said debt became payable, 381*] -"CUMMINS according to the terms of said deed, or V. about that time, the complainants in RAPLEY ET , AL, said bill deposited in said court, with Peay, the clerk thereof, the sum of A debtor, having executed a deed of trust for the benefit of his creditors, filed a bill in chancery to $348.50, being one-third of said debt, enjoin one of the creditors from enforcing his judg-and the first instalment thereof, fall-ment at law, and to coerce his acceptance of the ing due according to the terms of said deed of trust, depositing in the court the amount deed. That afterwards, on the ith then due, according to its provisions, for the payment of- the judgment: the creditor refused to re-August, 1849, on the final hearing of ceive the money, except as an unconditional pay-the cause, complainants proved, as ment, or to accept the deed of trust, or to become part of the evidence in the cause, the a beneficiary under it : upon the hearing, the bill fact of such deposit of said money, and was dismissed : Held, That the complainant had a right to withdraw the money so deposited. had the benefit thereof upon the hearing, and the further proceedings there-Appeal from Pulaski Circuit Court in in. That petitioner refused to receive Chancery. said money under said deed, as a con--R ON. WILLIAM H. FIELD, Cir-structive admission that he was bound cuit Judge. by the terms of said deed, but offered Pike & Cummins, for appellant. to take the same as an absolute payment on the debt. That upon the-ENGLISH, C. J. At the June term hearing, the injunction heretofore-of Pulaski circuit court, 1851, Cum-granted therein, was dissolved, and the mins filed a petition on the chancery bill dismissed : and on appeal to the su-side thereof, stating in substance, as preme court, by the complainant in. follows said bill, the decree of the court below That on the 28th July, , 1848, was affirmed. See Rapley et al. v. Charles and Abraham Rapley, Cummins et al., 11 Ark. 689. That aft-filed a bill in said court, against er the appeal was taken, Peay, the petitioner and others, alleging, clerk of the court, permitted said among other things, that peti-Charles Rapley to withdraw, and use tioner on the 26th April, 1848, had re-the money so deposited, without any covered a judgment against them, on leave of the court. Petitioner submits the law side of said court, for $989.93, that the court should have ordered , upon a note, &c. That one-third of and should still order the money to , be said debt was due and payable, accord-paid to him on said judgment ; praying to the tenor of a certain contract ing a rule upon said Peay and Charles and deed of trust made by them on the Rapley, to show cause why the money
CUMMINS V. RAPLEY. VOL. 17 should not be restored, and paid over Ringo and Trapnall are trustees. , My to petitioner, on said judgment, with clients claim nothing, and will accept interest, &c. nothing under that deed : nor will they Peay and Rapley filed a joint re-receive any payment whim may be sponse to a rule issued against them, construed an implied or express ap-to show cause, &c. They admit that proval of, or claim under that deed. I the facts are correctly set forth in the wish you to inform Mr. Rapley of this petition. That Abraham and Charles fact ; and furthermore, that unless the RApley made a deed . of trust to money is paid unconditionally, with-secure their creditors certain debts out . regard to said deed, no deposit will 3831 *due by them, and among them, be recognized or allowed in any way the debt due to Cummins, assignee, to stop interest on the debt. .My &c. That he refused to accept said clients are Messrs. Price, Newlen &Co., trust, and the said Abraham and and Tracy, Irwin & Co. Charles exhibited their said bill against Your ob't, serv't, said Cummins, in the Pulaski circuit E. CUMMINS, AtVy." court, to compel him to do so, and with "'On the hearing of the peti- P381 said bill tendered and paid to said tion, it was agreed by the parties, that Peay, .clerk of said court, the said sum the above letter was shown to Rapley of $348.50, &c., but said Cummins re-about the date thereof, and that he defused to receive said sum so tendered clined to permit the money to be with-and paid, in writing, which writing is drawn by Cummins, on the terms ex-exhibited. That CuMmins answered pressed in his letter, but insisted that the bill ; and, on final hearing, it was if the money was taken out, it should dismissed ; and on appeal to the su-be an acquiescence in the deed of trust. preme court, the decree was affirmed, That this all occurred in the vacation &c., and the said Abraham and Charles, of the court, and no motion or applica-finding that they could get no relief in tion ever was made to the court to with-the premises, and their bill being dis-draw the money by anyone. That, missed, they applied to Peay, and with-long before the decision of the supreme drew the said sum of money. Re-court was delivered, Rapley withdrew spondents insist that Cummins is en-the money ; Peay, the clerk, agreeing titled to no relief in the premises, and thereto, upon Rapley giving security pray to be discharged, &c. that the money would be returned The following is the written refusal whenever t he court should order. The of Cummins to accept the money, on receipt of Peay to Rapley for the mo-the terms proposed, &c., referred to in ney when deposited, dated 17th Octo-the response : ber, 1848, was read in evidence. Also LITTLE Roux, ARK., Feb. 5th, 1849. the decree in the chancery cause. GORDON N. PLAY, Clerk of Pulaski The court disthissed the petition, at Circuit Court. the cost of Cummins, and he- appealed SIR—I am informed that Mr. Charles to this court. Rapley has deposited some money in The authorities cited by the appel-your hands, in some case or cases, lant do not sustain his right to have where I am agent for the claimants. the money brought again into the court, My clients have expressly' rejected and and paid over upon the judgment. condemned the deed of trust or assign-No doubt, where a defendant brings ment made by Messrs. Rapley, to se-into court, and deposits so much mo-cure their creditors. I allude to the ney as he admits to be due the plaint-deed of record in your office, in which iff, on a demand sued for, it is a pay-
JAN. TERM, 1856. meat pro tanto, and he has no right to withdraw it, &c. But here, the complainants in the chancery suit, deposited with the clerk, in vacation, a sum of money, for a specific purpose, subject to be accepted and withdrawn by Cummins, on the terms and conditions upon which it was deposited. He declined so to accept it. On the hearing, the bill was dismissed, and thereby, the object for which the deposit was made by com-plaihants, was defeated. Cummins refusing to accept the money on the terms proposed, and the court denying the relief sought, we think the Rapleys had a right to withdraw the money. The judgment of the court below is affirmed. Absent, Mr. Justice Scott.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.