evidence he proposed to give. Eldred v. Hazlett, 33 Pa. 8t. m7; Helser v. McGrath, 52 Pa. St. 531; Troxell v. Iron 00., 42 Pa. St. 513.

Marshalls d'c Imbrt'e, for appellee.

It is the duty of administrator to Obtain all the assets. Drenkle v. Sharman, 9 Watts, 489; Corn. v. Strohecker, Id. 479. The administrator is chargeable with interest or profits. Fom v. Wilcocks, 1 Bin. 194; Biles’ Appeal, 24 Pa. St. 335; Clauser’s Estate, 84 Pa. St. 51; Conrad’s Appeal, 11 Wkly. Notes Gas. 521; In re Williamson’s Estate, 18 Wkly. Notes Gas. 139. The burden is on the administrator to show that he did not use the funds.

PER CURIAM. The decree of the court below is affirmed, and the appeal dismissed, at the costs of the appellant.

PARTNERsHIP—DrssOLUTION BY DEATH OF ONE PARTNER—CONTINUATION—SCRVIVORS—TRUST—PROFITS.

A., B., and C. were partners. 0. died, and A. was appointed his executor. Upon settlement Of his account he was charged with a sum, as the value of decedent’s interest in the firm. A. and B. continued the business, and did not pay to C.’s estate the value of his interest. Held, that A. held the same in trust for C.’s estate, and that the latter was entitled to its share in the profits.

Appeal of Isaac De Haven from the decree of the common pleas No. 1, Allegheny county.

The facts are fully set forth in the opinion of the supreme court.

Barton 60 Sons, for appellant.

Lazear &' Orr, for appellee.

De Haven, not having been a party to the orphans’ court proceeding, was in no manner affected by it, and is not entitled to the benefit of it by way of estoppel. Converse v. Colton, 49 Pa. St. 346; Blackwell v. Cameron, 46 Pa. St. 236; Allen v. Allen, 45 Pa. St. 468; Trowell v. Iron 00., 42 Pa. St. 513. The survivors are entitled to a share of the profits. Brown’s Appeal, 89 Pa. St. 147; Beatty v. Wray, 19 Pa. St. 516. ‘

TRUNKEY, J. Isaac De Haven, Jerome B. Anjer, and Levi Dillon were engaged in business as partners in name of De Haven & CO. The firm was dissolved by the death of Dillon on May 9, 1879. Anjer was appointed one of the executors of his will. On June 24, 1879, the executors filed an inventory and appraisement of the decedent’s estate, in which the interest of the decedent in said company was valued at $10,400. Anjer was the active executor, and upon the settlement of his account the orphans’ court, on January 6, 1881, decreed that he be personally charged with the sum of $10,673.64 for the interest Of the decedent in the property of said firm. That decree settled the liability of the executor, and his right, after payment Of the money to the persons entitled under the will, to receive as his own the share of the decedent on settlement of the partnership business; but it neither settled the value of that interest as respects settlement with the surviving partners, nor that the interest of the decedent had been sold to anybody. The executors, 1n case they had not sold the interest, by proper proceedings against the surviving members of the firm, could have compelled an account, and in such proceedings they might recover a greater or less sum than the amount of said decree ;. but whether it would be to their personal gain or loss would depend on some future action in the orphans’ court. It is obvious that, notwithstanding said decree, any action at law against a surviving member of the firm for ascertaining and recovering the value of the decedent’s interest would be in name of the executors as legal parties. In this proceeding it was proper to use their names; and, if there was cause for the amendment by adding the name of the use party, it was for the interest of the defendant; thereby enabling him to bring into the account some matter that did not concern the executors or the estate. The money recoverable in this action is still the property of the estate, unless the executor has actually paid the amount to the proper parties. The decree of the orphans’ court fixed the executor personally for the payment, but until payment he holds the money and property of the estate in trust. However, it works no possible injury to the defendant that the court permitted the name of the use party to be added, and the amendment is no cause for reversal.

After Dillon’s death, De Haven and Anjer agreed to continue and did continue the business. They made an indefinite arrangement for the joint purchase of the interest of the deceased partner, and De Haven was to own two-thirds and Anjer one-third in the new firm. The master finds that the arrangement was never carried out, and on June 18, 1880, An— jer refused to complete the arrangement, whereupon De Haven became the purchaser of the entire interest of Dillon, at the appraised value thereof. This finding is warranted by the testimony. De Haven testifies:

“Mr. Anjer told me that upon reflection he had concluded it was not proper for him, as executor of Mr. Dillon’s estate, to buy any portion of his interest. He suggested to me that I should buy Mr. Dillon’s interest. Upon the strength of this understanding the cross-entries were made, appearing upon the page 350, day-book or journal, under date of June 18, 1880. These entries

were made by me after Mr. Anjer said he would not take Mr. Dillon’s interest.” '

That testimony, with other facts, made it an easy task for the master to determine who purchased, and the date of purchase. At the time they agreed to continue the business, De Haven and Anjer contemplated a joint purchase, and made entries accordingly on their new books; but, when they closed their agreement, De Haven purchased alone, held three-fourths of the partnership property, and Anjer one-fourth, and “a counter-entry was made on the books recharging the Dillon estate with the interest of Levi Dillon, and crediting the accounts of De Haven and Anjer with the same. De Haven was charged with the entire interest of Levi Dillon, and in this shape the books stood until January 1, 1881.” On January

v.6A.no.8—49

1, 1881, Anjer sold his one-fourth interest, and retired from the firm. The appraisement was made, before the indefinite arrangement for the purchase by both De Haven and Anjer, by men whom De Haven selected. That it was fair there can be no doubt, for all interested parties treat it as correct. Until actually sold, the interest of the deceased partner belonged to his estate. NO principle is better settled than that a surviving partner, or a person holding the property of a decedent in trust, who deals with the property, is liable to account for the profits. Upon the facts found the defendant was liable for profits until his purchase in June, 1880. Had a just valuation been put 'on the interest at the date of the purchase, that would have included profits; but, instead, the purchase was at a valuation when the interest was not worth so much.

The appellant complains that he was not allowed a credit for $575.94, being one-fourth the. interest paid for borrowed money to carry the indebtedness of the firm. In his agreement, reference was made to the testimony of Mr. Reed, showing that he rejected this item in his statement of the value of the interest Of Dillon on May 12, 1869. But Mr. Reed further testifies: _

“Had the interest of Dillon carried with it an interest in the profits in the new concern or firm, I should have done so, and on that principleIdid charge the Dillon estate with that item in my statement of the account, on the hypothesis that the Dillon estate had an interest in the profits up to June 18, 1880, which account I was directed by the master to make.”

And the statement. on the hypothesis that the estate was entitled to profits, shows that said item of $575.94, was allowed to the appellant, and charged against the estate. The master came to the conclusion that the profits which accrued on the interest Of the estate before the sale thereof was consummated, belonged to the estate, and therefOre recommended the decree, which is for the precise sum as the balance in that statement.

The disposition of the costs was as favorable to the appellant as the facts would justify.

Decree afiirmed, and appeal dismissed, at the costs of appellant.

INTOXICATING LIQUORS, SALE OF—INDICTMENT—INFORMATION—-PENNSYLVANIA AOT APRIL 3. 1872—RETURN BY CONSTABLE. ,

Where a return is made to the court of uarter sessions by a constable under the Pennsylvania act of April 3, 1872, L. 843,) setting forth that a person had sold liquor contrary to law, it is not necessary, before an indictment is found by the grand jury, that there should be a previous information or binding over.

Error to quarter sessions, Allegheny county. Indictment by the commonwealth Of Pennsylvania against John Davidson. '

On September ‘7, 1885, John Davidson was returned by the constable of South Fayette township for selling liquor contrary to law, under the act of April 3, 1872. On October 16th a true bill was found against him by the grand jury. On November 24th he was tried, convicted, and sentenced, whereupon a special allocatur being granted by the supreme court, this writ was taken.

John S. Robb and W. D. Moore, for plaintiff in error.

The return of the constable was not a sufiicient basis for finding a bill of indictment. McCullough v. Com., 67 Pa. St. 30. The indictment is defective, in that it does not charge that a vote was taken, as required by the act of April 3, 1872; nor that it was certified to court, and the result as against license; nor that Allegheny is a prohibitory district. Whart. Crim. Law.

M. D. Porter, Dist. Atty., for defendant in error.

The constable was bound to make the return irrespective of the act of 1872. McCullough v. Com., 67 Pa. St. 32. This case distinctly rules that the return, being made under a special oath at the time, is equivalent to an oath. and charge before a magistrate.

PER CURIAM. The return of the constable was a sufficient warrant for the action of the court of quarter sessions in directing the indictment against the defendant below to be laid before the grand jury. The duties of constables and courts, in cases of this kind, is so thoroughly discussed in McCullough v. Com., 67 Pa. St. 32, that we need but refer to it, and an inspection of that case will at once show that the court below was justified in doing What it did. The other exception is so utterly without merit that special notice of it is unnecessary.

Judgment affirmed; and it is ordered that the records be remitted to the court of quarter sessions for execution.

TBESPASS—TO REAL ESTATE—NEGLIGENT MINING—DAMAGES—ELEMENTS or. A. conveyed to B. all the coal underlying certain lands, and subsequently one of the heirs of A. conveyed to C. a part of the same lands. 0. built a house thereon, and afterwards brought suit against B. for damages caused by negligently mining coal; claiming the right to damages for injuries to his house, his springs, and his ground. Held, that all these were proper elements of damage.

Error to common pleas N o. 1, Allegheny county.

Case by W. Kilgore against William Huey, Robert Gumbert, and others, partners doing business as Gumbert & Huey.

On June 30, 1859, Alexander McClure, Sr., sold all the coal underlying his two farms, of 244 acres, to Farrow, Gumbert & Co., of whom the defendants are the successors. He having died, his administrator, by order of court, delivered to Farrow, Gumbert dz Co. a deed in pursuance of the agreement. Under this, Farrow, Gumbert & Co. and their successors, the defendants, mined coal in the usual manner. Watso Kilgore, on November 23,1872, purchased from William A. McClun one of the heirs of Alexander McClure, Sr., 14 acres of one of the abovr mentioned farms; the grantor reserving to Farrow, Gumbert & Co. thei rights in regard to coal. Kilgore built a house on the land. In 188

defendants mined the coal under Kilgore’s land, and this action w

brought to recover damages for injuries done to the house, springs on t

land, and the ground, caused by the negligent manner in which the mi

ing was carried on. Upon the trial, before COLLIER, J ., defendants r quested the court to charge the jury:

“That the conveyance of the coal by McClure, Sr., under which the defen ants removed the coal from under plaintiif’s land,authorized them to remo all of the coal, Without regard to the subsidence of the overlying surface Answer. Refused.” ‘

“That there is no evidence in the case to warrant the jury in finding an; damages for the loss of springs. Answer. Refused.” \

And the court charged the jury: \

“They are bound to sustain it [ the surface] in its natural condition, and an ordinary house was put upon it by the owner of the surface, and, by re son of their not supporting the surface to that condition, injury occurre they are liable in damages.”

Verdict and judgment for plaintiff for $500, whereupon defendan took this writ.

Defendants had the right to mine and remove coal, without regard to th subsidence of the overlying surface. Rowbotham v. Wilson, 8 H. L. 348 Duke of Buccleuch v. Wakefield, L. R. 4 H. L. 377; Aspden v. Seddon, L. R 10 Ch. App. Gas. 394: Dixon v. White, 8 App. Gas. 833: Scranton v. Phil lips, 94 Pa. St. 15. At all events, all that they were bound to support wa: the soil, and not houses thereon. God. Easem. 410, 411; Marvin v. Brew ster Iron Min. 00., 55 N. Y. 538; Gilmore v. Driscoll, 122 Mass. 199 There was no evidence of malice. There could therefore be no recovery f0: loss of springs. Chadwick v. Coleman, 80 Pa. St. 81.

Henry T. Watson, for defendant in error.

The right of the owner of the surface to vertical support is settled by Coleman v. Chadwick, 80 Pa. St. 81.

PER CURIAM. Having with care examined the rulings and charge 0 the learned judge of the court below, and finding them entirely conso nant with the rulings of this court, we adopt them as a sound exposi‘ tion of the law, and, as a legitimate sequence, affirm the judgment.

HOLLAND and another 12. SAMPSON.‘
(Supreme Court of Pennsylvania. November 15, 1886.)

MORTGAGE—CONDITION—FoRFEITURE—FOREoLosURE. The amount of a mortgage was payable in installments, with interest. Th1 mortgage contained the usual seire facias clause, allowing its foreclosun