
    John Welsh vs. Patrick Usher and others, his attaching creditors.
    Heard before Chancellor Í>. Johnson, Charleston, May Term, 1836.
    Of this long contested and much litigated cause, the only question remaining to be disposed of, arises out of the adverse claims of the complainant, and William Ss Miller and Company. For the general history of the cause, it will be sufficient to refer to the pleadings, and so far as relates to the' present question, it will be sufficient to state, that it has been adjudged, that the comDlainant bad an equitable Hen on the fund, for the balance due him, by fendant, Patrick Usher, on account of the sale of the Juniattay arising out of a contract entered into by William Usher, the attor. ney of Patrick Usher, with Stow and Whitter, the agents of the complainant, for the resale of the Juniatta to the complainant, which on account of its defective execution, was adjudged not to convey the property in the brig. At the time this contract was entered into, Scow and Whitter, on the part of the complainant, entered into an agreement with William Usher, of the same date', (22d December, Í.826,) in which it is recited, “ that they had bought the Juniatta, of the said William Usher, for the complainant, for $8,000, and that the amount of complainant’s claim against the said Patrick Usher, was first to be deducted out of it, and the balance to be paid to the said William, in cash, provided, the title made by him, as attorney of Patrick Usher, be good. If not good, then the bill of sale, or title given, together with this agreement, to remain null and void.”
    The interest of Patrick Usher, in this contract, was assigned by him to William S. Miller and Company, by deed, dated the 28th April, 1828, in consideration of a debt of $4,000, or thereabouts, due by him to the said William S. Miller and Company, and they were constituted his attorneys, irrevocably, to recover any thing that might be due him on that contract.
    It appears by this agreement that the sum of $8,000, which was to be allowed by the agents of the complainants, on the resale of the brig, exceeded the amount then due by Patrick Usher to the complainants. And the defendants, William S. Miller and Company, claim that they are entitled under the contract and assign, ment, before recited, to what may remain of the fund, after paying the amount due to complainant. This is resisted by the complainant. 1st. Because the said William S. Miller and Company, have.a plain and adequate remedy at law; and 2d. Because this demand is barred by the statute of limitations. The agreement on the part of William Usher, as the attorney of Patrick Usher, to sell the Ju-niatta to the complainant, and the undertaking of Stow and Whit-ter to pay what should remain due of the price, after deducting the amount due by Patrick Usher to the complainant, are but the sepa-' rate parts of the same entire contract, and are so interwoven that the obligations imposed by the latter, are made to depend entirely on the former. And it is the complainant, and not William S. Miller and Company, who asks the aid of the court to enable him to obtain the benefit of the contract on his part; and on reviewing the circumstances, I am not able to perceive the least shadow of a foundation, for the objections raised against the claims of William S. Miller and Company. The court will not give effect to so much only of the same contract as operates in favor of one of the par. ties, without requiring that party to perform his part. Nor will the bar of the statute be suffered te operate as to one part and not as to the other of the same contract.
    The complainant is not entitled to claim out of the fund, more than due him from Patrick Usher, and by precisely the same rule, William S. Miller and Company tire entitled to thq remainder,.
    
      It is, therefore, ordered and decreed,that this case be referred to the commissioner to take an account of the amount due by Patrick Usher to the complainant, John Welsh, at the time of the recon. veyance by Welsh to Usher. That th'd sum thus due, be deducted from the $8,000, agreed to be paid for the brig on the resale, and that the complaiuaut pay to the defendant, as assignee of Patrick Ushers the difference, or balance, with interest from 27th March, 1827, the period at which the complainant obtained possession of the brig (Juniatta,
    DAVID JOHNSON.
    
      Grounds of Appeal.
    
    1. That the claim of Patrick Usher, set forth in the answer off defendants as assignee to William S. Miller and Company, was barred by the statute of limitations.
    2. That the said claim might be recovered by an action at law, and there was no ground for equitable interference therewith.
    3. That there was no fund within the control of the court, to give jurisdiction, and the fact of the complainant having come into the Court of Equity, to supply a technical defect in his legal con. veyance, will not authorize the court, to take cognizance of, and decide on the indebtedness by the complainant to the defendant, Patrick Usher.
    4. That the defendants were attaching creditors, and the com. plainant’s title to the Juniatta, being perfected, the defendants were out of court, for want of property to give jurisdiction by -way of foreign attachment.
    
      5. That the decree of his honor, the chancellor, was in other respects erroneous.
    THOMPSON, Complainant’s Solicitor.
    
    Hunt & Thompson, for motion.
    Retigeu and Dunkin, contra.
    Filed 21st March, 1837.
   We concur in the conclusions of the chancellor, on the case, and’ the decree is affirmed.

WILLIAM HARPER,

J. .TOHSTON.  