The appellant, Towles, as the administrator of Henry L. Wilkinson, filed his bill praying for an account between the defendant Costley and the firm of Killam & Wilkinson. Samuel Spence, the administrator of Killam, was made a defendant. The grounds upon which the account is claimed are as follows: Costley & Killam being partners in the purchase of cotton, bought 15,000 pounds of cotton at 20 cents per pound; f1675 of the amount paid were funds of the dissolved partnership of Wilkinson & Killam, used in this manner with the assent and concurrence of Towles, Killam & Costley. Kil*663lam having died, Costley, as surviving partner, sold 9,000 pounds of the cotton in New York, at 50 cents a pound, and loaned 6,000 pounds to Fuller, at a time when the price was 40 or 50 cents a pound. With the money obtained he bought claims against the firm of Wilkinson & Killam, and drugs which he afterwards sold on his own account,,on a profit. The answer of Costley, though different in some respects from the allegations of the bill, does not materially vary the legal effect of the above statement.

The report of the register, on a decree of reference, ascertains, among other things, that $577.50 of the assets of Wilkinson & Killam, were used by Killam, after the death of Wilkinson, in payment for the cotton, and that after the death of Killam, Towles advanced to Costley, for the same purpose, $1,: 00, from the same source. The decree was in favor of the complainant for the balance found due from the defendant Costley to the firm of Wilkinson & Killam. Some exceptions were taken by Costley to the report of the register, which were overruled. As they are not pressed by his counsel, and seem not to be material or indicative of substantial error, we will not consider them.

The principal questions arise on the demurrer to the bill, on the grounds of want of equity, multifariousness and non-joinder of parties.

Killam appropriated some of the assets of his former partnership with Wilkinson to the use of his partnership with Costley, For this his representative was liable to account to the complainant. Again, it was the duty of the complainant to collect the assets of his intestate, and to this end he was entitled to join the surviving partner of Killam with his representative, in order to have a full account of all the assets properly chargeable against the estate of Killam. — Story’s Eq Plead. § 178 ; Long v. Majestree, 1 Johns. Ch. R. 305.

The virtue of agreement between the complainant and Spence consists mainly in this; that the only matter in controversy between the two estates is this unsettled business, of Killam & Costley. Killam’s estate is responsible to Wilkinson’s for the profits made by the use of their *664partnership funds, and entitled to one-half of the profits accrued from the partnership of Killam & Costley of the proportion of the assets of his partnership, to which, both of the estates are entitled, will terminate all controversy. The demurrer was properly overruled.

■ The rule of law which restricts the right of reducing to possession the choses in action, debts and other rights of actions, to the surviving partner, or his representative, does not apply with equal force in equity, even if the matter of this suit were subjected to.its application. — Story on Partnership, §§ 362, 346, and note 1. There was no error in rendering the decree in favor of the complainant. The objection that the complainant is administrator only by appointment of a court of the late Confederate States, can not be made for the first time in this court.

The decree is affirmed.