Upon the coming in of the master’s report, both parties have alleged exceptions.
1. The plaintiffs except to the allowance of the sum advanced by Morrison & Co., on the consignment of the cargo of the Fraternidad, as a credit to the defendant. The correctness of this allowance depends upon the relation in which the parties stood to each other, and to the property which was the subject of account, They had been partners, and the partnership had expired. The plaintiffs undertook to pay the defendant for his interest in the partnership property, and continued the general business on their own account. An approximate estimate waa *396made of the value of the defendant’s interest in the adventures and transactions which were not then closed, and payments were made to him of the amount thus ascertained ; but it was expressly agreed that these accounts should remain open and subject to future settlement, and that any gain or loss upon them should be credited or charged to him in the proportion which his share bore to the whole amount.
The effect of this contract was, that the partnership continued as to these unsettled accounts, and whatever was received by the plaintiffs upon them was received on behalf of the defendant, as well as on their own. It would then follow that, when Morrison & Co. made an advance on the bills of lading, the money thus received was on the joint account of the plaintiffs and defendant. He is liable with them to refund to Morrison & Co., if there has been an over payment. Although it appears that Morrison & Co. allowed a smaller sum than that which they advanced, as the proceeds of the cargo, yet the plaintiffs have not repaid the difference. If they should pay it, and when they pay it, if it is found justly due, they will be entitled to make a charge in account against the defendant based upon it. In the mean time, it is merely a liability on account of the adventure not yet discharged; and, until the plaintiffs discharge it, they cannot make any deduction from the amount of partnership property in their hands on account of it, or require the defendant to allow anything for it in a settlement.
The plaintiffs’ second exception is the same in substance; and both are overruled.
2. The defendant excepted to the admission of certain depositions, on the ground that the caption and certificates did not show that the witnesses were properly sworn and examined. The depositions were originally admitted, subject to all objections. The hearings continued for six months afterward, and it was not until that time had elapsed, and all the evidence was in, that the defendant’s counsel in his argument first suggested this objection. The objection was merely formal, and, if well taken, might have been obviated, if it had been seasonably brought to the notice of the party using the depositions. We think it must be considered as waived. But if it were now *397open, it could not be supported. It sufficiently appears that the deponents were sworn, and were examined according to the directions in the commission, and the defendant had an opportunity to cross-examine. Being taken under a commission, and out of the state, the statute allows them to be used in the discretion of the court, although all the formalities required in depositions taken within the state were not observed. Gen. Sts c. 131, § 37. Stiles v. Allen, 5 Allen, 320. Bacon v. Rogers, ante, 146.
The other exception is to the allowance of certain costs and expenses incurred by the plaintiffs in the prosecution of the same commercial adventure which was the subject of the plaintiffs’ exception. It was correctly decided by the master. The plaintiffs had the same right to use their best judgment in incurring such expenses as seemed to be reasonable and necessary in settling the outstanding affairs of the partnership that they had while the partnership continued. Nor is the fact important, that the sum allowed by the master exceeds the sum stated in the acount annexed to the plaintiffs’ writ. The objection does not appear to have been taken before the master. If it had been, the account might have been amended. Beside; this is a proceeding in equity, with a prayer for an account and for general relief. Any errors of the account as rendered may be corrected, if the parties are not thereby surprised or prejudiced.
All the exceptions to the master’s report are therefore overruled, and the cause will stand for further proceedings and orders.
We do not see that in its present aspect the plaintiffs can be entitled to a final decree. While the claim of Morrison & Co. or the International Bank to a repayment of the excess of their advances, or any other debt of the partnership, remains unadjusted, the plaintiffs cannot recover of the defendant any sum as finally due in equity upon a complete and final settlement of the partnership affairs. This difficulty might be obviated, if, as in Brinley v. Kupfer, 6 Pick. 179, the amount were so small that the plaintiffs were willing to deduct it from the amount due to them.