Dunbar v. Buck , 6 Va. 34 ( 1817 )

The following opinion of the Court was delivered by Judge Roane.

The Court

is of opinion, that, as the case now appears, the sum withheld from the appellant, as dead freight upon the corn in the proceedings mentioned, as also the amount of the loss sustained by him by the failure to take on board the residue of the corn agreeably to contract, (to be estimated under the direction of the Court of Chancery,) were proper Items to be set off against the judgment in question; and that, although these last mentioned sums were due by David Henderson & Son, and not by David Henderson individually, it is competent to the appellant, in equity, to charge the said David lleitdérsM forasmuch of the surplus of the partnership property as May be due to him on a settlement of the partnership acCoutt^s’. *n extinguishment of the said dcbtj for the purpose of which settlement, however, (if required by the defendants,) and also for that of ascertaining and adjusting the existence and amount of the foregoing Items, the son of the said David Henderson ought to have been made a party.

The Opinion of the Court, therefore, is, that the Decree is erroneous in dismissing the bill, instead of having provided for such settlement and adjustment, and also for the adjustment of the private accounts between the parties. The same is therefore reversed with Costs, and the cause is remanded, in order to have the necessary party made as aforesaid, and be further finally proceeded in, pursuant to the principles of this decree.