A, an heir of B, assigned all his interest in her estate the day after her death to C for $1,000. Six months later D, a creditor of A before his assignment, attached his interest in the estate. Before the Auditor both the as

signee and the attaching creditor claimed A's share of B's estate, amounting to $1,660 48. The Auditor awarded it to C. On exceptions filed to the report, HELD, that the exceptions must be sustained.

The inadequacy of price, the apparent haste in making the assignment, the fact that A was indebted and that he assigned his whole interest, raised such a presumption of fraud as would justify a jury, if the evidence were submitted to them, in finding against the validity of the assignment.

The sale of lands or goods by an indebted person for less than their value is ipso facto a fraud in both vendor and vendee.

So much of the share as is left after paying the attachment must be awarded to the assignee.

Exceptions to Auditor's report.

The report of the Auditor, Jas. G. Glessner, Esq, on the question involved, is as follows:

N. M. Wanner, Esq.,counsel for Joseph Kindig, offered in evidence the assign ment of Harrison Kindig's share in said estate to Joseph Kindig, as follows:

of I have hereunto set my hand and seal this 14th day of October, A. D. 1901. Harrison Kindig. (seal) Witness: Noah C. May."

N. S. Ross, Esq., counsel for John C. Gehley, objected to the allowance of share of Harrison Kindig but afterwards appeared before your auditor and declined to press his claim.

E. D. Bentzel, Esq., counsel for Felix Bentzel offers in evidence attachment No. 75, April Term, 1902, in the Court of Common Pleas of York County, served April 5th, 1902. Amount of said claim

being $201.00 with interest from January 7th, 1896.

Mr. Wanner, counsel for Joseph Kindig, admits "that there is a sufficient excess of moneys coming to Harrison Kindig as distributee over and above the consideration named in the assignment of said Harrison Kindig's share to Joseph Kindig, to pay in full said attachment of Felix Bentzel and submits to the auditor as a question of law, whether or not said assignee is entitled to the whole share assigned or whether said Felix Bentzel as a creditor is entitled to be paid out of the surplus over and above the consideration paid in the assignment. If the auditor is of the opinion that the said Felix Bentzel is so entitled, he shall award him the amount of his judgment with interest and costs in full, if not, the share of said Harrison Kindig to be awarded in full to said Joseph Kindig. Both parties reserving the right to file exceptions to the ruling of the auditor."

It was also admitted that Harrison

Kindig was indebted to Felix Bentzel prior to the date of the assignment of Harrison Kindig to Joseph Kindig, as set forth in said attachment, subject to a credit of seventeen dollars and seventeen from the assignee of said Harrison Kindig. cents, amount received by Felix Bentzel from the assignee of said Harrison Kindig.

"Know all men by these presents, that I, Harrison Kindig of York City, York County, Pennsylvania in consideration of the sum of One thousand dollars to me in hand paid by Joseph Kindig of York, Pa., do hereby assign and set over unto the said Joseph Kindig to his own proper use without any account to be given for the same, any and all sums of money which shall or may become due me as my share of the inheritance or estate of my sister Ellen Kindig deceased, of York City, Pa., and all my right, title and demand in and to the same, and I do hereby give and grant the said Joseph Kindig The assignment on its face is an absofull power and authority to demand and lute one for a valuable consideration and receive the same to his own use and upon without any trust or agreement attached receipt thereof to give discharges and thereto. Harrison Kindig the assignor releases for the same. In witness where- is not contesting or complaining. Felix

Thus the only question for your auditor to decide, is, was the assignment of Harrison Kindig to his brother Joseph Kindig, in fraud of the creditors of said Harrison Kindig, or was it a bona fide transaction free from fraud?

Bentzel, an attaching creditor who issued would have been necessary to have shifthis attachment more than five months ed the burden of proof, but none was ofafter the date of the assignment, contends fered; therefore the contention of the at that the assignment is fraudulent because taching creditor mist fall and the share of the inadequacy of price, citing David- of Harrison Kindig under the said assignson v Little, 22 P. S. 245 in support of ment will be a warded in full to said Joseph his contention. In this case Chief Justice Kindig in the schedule of distribution Black holds, The sale of lands or goods hereinafter made. by an indebted person for less than their value, is ipso facto a fraud in both vendor

and vendee." On the other hand Chief Justice Sterrett in Whelen v. Philips, 151 P. S. 322, (1892,) says 'it may be confidently asserted that in this State a person sui juris, owning a contingent remainder in land or in personal property, may sell the same for such a sum as may be agreed upon between himself and the purchaser, provided the former does not stand towards him in a trust relation, and in making the purchase acts in good

faith."

To this award of the Auditor excep. tions were filed on behalf of the attaching creditor.

E. D. Bentzel for exceptions.
N. M. Wanner, contra

single question is presented by these ex-
May 16th, 1904. STEWART, J.-A
ceptions:

other brothers and children of a deceased

Ellen Kindig, the decedent, was a sister to Harrison Kindig and Joseph Kindig, each of whom is entitled to a share of her estate. She died October 13th, The interest conveyed by Harrison 1901, intestate and unmarried, leaving Kindig to Joseph Kindig was a vested, brother as her heirs and next of kin, and not a coatingent, interest in personal property, it was sold at a price agreed the day after her death, Harrison Kindig an estate of $1,756.88. On October 14, upon and there has been no evidence produced to show or that tended to show that either Harrison Kindig or Joseph Kindig knew at the time of the assign ment that said share was of greater value than the amount paid for it.

Fraud is not to be presumed but proved; Fritz's Estate, 160 P. S. 164. The assignment offered in evidence was selfexplanatory; Harrison and Joseph Kindig, the assignor and assignee respectively, were both present before your auditor and neither was called by Mr. Bentzel, coun el for the attaching creditor, to

show that either knew the value of the

assigned by writing under seal for a conhis deceased sister's estate to Joseph Kin. sideration of $1,000, all his interest in dig, who claims this share before the Auditor and which amounted in the distribution to $1,660.48.

On April 5th, 1902, a writ of attachment execution at the suit of Felix Bentzel on a judgment, No. 75, April Term, on the administrator of Ellen Kindig. and 1902, against Harrison Kindig, was served Harrison Kindig's interest in the estate ed upon a note given March 7th, 1895, was attached. Taisjudgment was foundsaid share when the assignment was ex by him assigned May 26th, 1896, to Feby Harrison Kindig to John Hamm, and ecuted, therefore it was not the duty of lix Bentzel. Bentzel was therefore a the assignee "to proceed further and show the bona fides of the transaction" a his interest in the estate of his sister decreditor of Harrison Kindig at the time subject not arising upon the assignment; volved upon him and at the time of the Whelen v. Philips, supra. It is true the amount to be realized on this assignment assignment to Joseph Kindig. is about one third more than Joseph KinThe assignment was in writing, and dig paid for it, but without evidence to witnessed by a subscribing witness. At show that he and his brother knew at the the hearing before the auditor. the subtime the assignment was made, that the scribing witness was called and testified share assigned was of greater value than that he drew the assignment and saw the amount paid, your auditor will not Harrison Kindig sign the paper, and, on find that it was ipso facto fraudulent and cross-examination, that it was signed on thus shift the burden of proof. There the day it bears date. seems to have been undue haste in mak

This was all the testimony offered at ing the assignment and but little evidence the hearing before the auditor. Counsel

for Joseph Kindig, however, put on the the authority above cited, there was eviauditor's notes an admission to the effect dence of fraud sufficient to put the holder that there was sufficient money under this of the assignment to proof of the bona fides assignment in excess of the $1,000 named of the transaction, but he offered none. as the consideration money to pay the The Bentzel judgment had existed for upattachment of Bentzel, and that Harrison wards of six years against Harrison KinKindig was indebted to Bentzel prior to dig and had not been paid or satisfied. the date of the assignment, and submitt Under the Insolvent Act of June 4th, ed to the auditor the question of whether 1901, P. L. 404, permitting a judgment or not the assignee is entitled to the whole to be entered against a party constitutes share assigned, or whether Felix Bentzel insolvency. It may be said, therefore, as a creditor is entitled to be paid out of as was said in Rhoads v. Blatt, 84 Pa. 31, the surplus over and above the considera. "The record showed that Kindig was intion paid. solvent. In a sale by an insolvent vendThe auditor found that Joseph Kindig or, inadequacy of price is evidence of is entitled to the whole share, and that fraud, and a sa'e of lands or goods by an Bentzel takes nothing by his attachment. insolvent person for less than their value The position taken by the exceptant is is ipso facto fraud in both vendor and that because of the inadequacy of price the transaction is fraudulent and therefore

vendee."

It having been shown by the evidence void as against him as an attaching cred before the au litor that there was considitor. The only facts which give rise to erable inadequacy of price; that this a suspicion of fraud are the inadequacy judgment had existed for nearly six of price, the apparent haste in making years against the vendor unsatisfied and the assignment, the fact that Harrison uncontested; that he was therefore, under Kindig was indebted, and that he assign. the Act of 1901, insolvent, and that this ed his whole interest. It is not shown judgment creditor was before him claimexcept by the assignment itself that any ing this fund, there was sufficient evimoney was actually paid for the assign dence of fraud to invalidate the assignment. Do these facts raise such a pre- ment as against the attaching creditor, sumption of fraud as would have justified and he should have awarded payment of a jury if this evidence had been submitted the attachment out of the fund. to them to find against the validity of the assignment?

In Davidson v. Little, Chiet Justice Black said: "Inadequacy of price is not fraud. A man may be as honest in mak ing a profitable bargain as a bad one; and the law does not require him to pay a full price if the person he deals with is willing to take less. The owner of property may sell it for very little or give it away for nothing if he thinks fit, and however unreasonable his conduct may seem, his will alone is sufficient to avouch the act 'Stat pro ratione voluntas.'

Harrison Kindig can not contest the validity of this assigament and does not. Being grounded in fraud, it is good against him. Therefore, the remainder of said share is payable to Joseph Kindig after allowing the amount of the debt, interest and costs due to Felix Bentzel on his attachment.

The exceptions to the Auditor's Report are sustained and the report is referred back to the Auditor to report a schedule of distribution in accordance with this opinion.

QUARTER SESSIONS.

The law will never interfere, between
parties themselves, to set aside an honest
contract which they have voluntarily
made. When creditors complain, the 2. S. of
case is totally different.

The sale of

lands or goods by an indebted person for less than their value is ipso facto a fraud in both vendor and vendee;" Davidson v. Little 22 P1. 245.

The auditor finds that there was no evidence of fraud in the transaction. With this finding, I can not agree. Under

Philadelphia Co.
Commonwealth v. Hoover.
Sunday Law-Purchase to secure evidence
to convict seller-Act of April 22, 1794.

The Act of April 22, 1794, 3 Sm. Laws 177, prohibiting "any worldly employment or business whatsoever on the Lord's day," applies to buyers as well as sellers.

Any agent of a society who buys a cigar on

Sunday in order to secure evidence to convict the seller of the offence prohibited by the Act, is not performing such a work of necessity as the Act permits.

Appeal from magistrate.

W. V. Collier for appeal.

Union Passenger Railway Company, 54 Pa. 401, it was said by Reed, Jr., in the latter case, page 443. Judge Bell, in Specht v. Commonwealth, 8 Barr 325, puts the Sunday law on its true busis: "Its sole mission is to ir culcate a temporary weekJanuary 8, 1904. MARTIN, J.-Albert ly cessation from labor, but it adds not J. Hoover, the defendant, was arrested to this requirement any religious obligaupon a warrant charging him with a vio- tion." lation of the Act of 1794 3 Sm. Laws 177, relating to worldly employment on Sunday. After hearing, he was convict ed, and subsequently appealed.

It appears from the magistrate's tran script that the testimony produced at the Learing proved that the defendant in the County of Philadelphia, "On Sunday, October 18, 1903, while agent for a society, bought a cigar."

Chief Justice Lowrie, in Commonwealth v. Nesbit, 34 Pa. 403, after referring to the earlier legislation in this Commonwealth and to the English Act of 29 Charles II, chapter 7, upon which our laws were in a great measure modeled, said: "Let us consider the statutory definition of what is forbidden. It is any worldly employment or business whatsoever.'

What does this word 'worldly'

mean? Its correlatives help us to its meaning. Very evidently worldly is contrasted with religious, and all worldly employments are prohibited for the sake of the religious ones.

It was claimed at the argument, that while selling a cigar was within the pro hibition of the law, that its terms did not extend to buying; and that defendant, when making the purchase, having acted as a detective employed to convict sellers, Reference to buying" in terms is of if he was performing worldly employment rare occurrence in the laws. Perhaps or business, his work was one of necessity the earliest appearance of the words is in within the exception contained in the Act.

Sunday legislation is more than fifteen centuries old, and the "historic argument" is of value in construing the existing law.

the enactment by the Council of Mayence, in 813 A. D., under Charlemagne, which decrees that all Lord's days shall be observed with due veneration, and that all servile work shall be abstained from, and that buying and selling may be less • All Sunday legislation is the product cial trial, unless concerning capital crimes. likely to happen; there shall be no judiof Pagan Rome; the Saxon laws were The Council of Rheims prohibited on the product of Middle Age legislation of the Lord's day any mercantile transac"The Holy Roman Empire." The Eng- tion;" Lewis's History of Sunday Legislish laws are the expansion of the Saxon, tion, 66. In one of the laws of Edward and the American are the transcript of the Elder, made after the peace between the English; Lewis's History of Sunday the Danes and the English, it was proLegislation 70. vided that "If any one engaged in Sun

The first Sunday law, the edict of the day marketing, let him forfeit the chatEmperor Constantine, was the product of tei" and pay a fine; and in the reign of that pagan conception developed by the Aethelstane it was enacted "That no Romans, which made religion a part of marketing be on Sunday;" Ibid. 73. the State. The day was to be venerated Among the laws of Edgar was one "that as a religious duty owed to the God of enjoined that Sunday trading be abstainthe Sun. During the Middle Ages the ed from;" Ibid 74, and laws similar in civil authorities exercised the right to character were enacted in the reign of legislate in religious matters after the Ethelread, and also that of Canute; Ibid manner of the Jewish Theocracy. The 129. English Reformation introduced for the The Cromwellian Parlament passed an first time the doctrine of the Fourth Com-Abt in 1656 in which persons who were mandment to the first day of the week. "In any tavern, any ale-house, victualingWhile christianity is part of the common house, strong-water-house, tobacco-house, law of this State; Updegraph v. Common- cellar or shop, they not lodging there wealth, 11 S. & R.394; Sparhawk v. (and only upon urgent necessity be al

to, and which is quoted in the opinion of Judge Reed in Sharhawk v. Union Passenger Railway Company, 54 Pa. 407, there was a mandate to all judges and all city people and all tradesmen to rest on the venerable Day of the Sun, but, the work of necessity excepted, permitted their dwelling in the country freely, and with full liberty to attend to the culture of their fields, since it frequently happens that no other day is so fit for the sowing of grain or the planting of vines; hence the favorable time should not be allowed to pass, lest the provisions of Heaven be lost.”

lowed by a Justice of the Peace,) or fetching or sending any wine, ale or beer, tobacco, strong-water, or other strong liquor unnecessarily, and to tipple within any other house, shall be deemed guilty of profaning the Lord's day." In the same Act it was provided that every butcher killing any cattle, coffee-monger, poul terer, herb-seller, cord-wayner, shoemaker, or other person selling, deposing. or offering to sell any of their wares or In the year 858, A. D., Pope Nicholas commodities, shall be deemed guilty of I. in his instruction to the Burgundians prophaning the Lord's day; Ibid 129 that had lately embraced christianity, In the Statues of 29 Charles II, chapter taught them that there were no days on 7, the subject was forbidden from exer- which works of necessity, such as journeycising "his ordinary calling or business" ing, fighting, &c., might not be peron Sunday, and its wording was adopted formed; Lewis's History of Sunday Legisin the Act of 1705 passed in this Com-lation 67. monwealth; Commonwealth v. Nesbit, 54 Pa. 403. The Act of 1794, however, con tains a prohibition against "any worldly employment or business whatsoever on the Lord's day," and enumerates the exceptions.

As was said in the case of Duncan v. Commonwealth, 2 Pearson 215, "It matters not whether it is the person's ordinary calling or business, or not. The old Act of 1705 in this particular was copied from the Act of Charles II.

It was stated by Chief Justice Lowrie, in Commonwealth v. Nesbit, 34 Pa. 403, in construing the words of the Act of 1794: Some worldly employments are expressly allowed, such as removing one's family, the delivering of milk and the necessaries of life, and the business of ferrymen and inn-keepers; and, of course, his servants and by all the ordinary these may be performed by a person or which are not in themselves forbidden, means adopted for this purpose, and and all worldly employments are allowed

which in their nature consist of acts of

already cited, but after the construction put on these words by the learned Court necessity or charity, or if they become so of Great Britain, our legislators, in pass- for the time being by reason of famine, ing the Act of 1794, as we conceive, pur-flood, fire, pestilence, or other disaster. posely changed the wording. They saw that the blacksmith might leave his shop and work on Sunday at making garden or building fences; "It was not his ordinary calling. They therefore forbade "any worldly empiopment whatsoever."

In the same case it was (page 215:) "We are unable to see why the buyers, as well as the sellers, are not offenders against the law; both are doing worldly

business."

It is claimed, however, that the act of the defendant was one of necessity, in order to produce evidence of the offence by the seller.

The laws regards that as necessary which the common sense of the country in its ordinary modes of doing business regards as necessary.”

Accepting in its broadest sense the deconnection with Sunday legislation, it is finition of works of necessity as used in not possible to conceive of a necessity to an offence which is susceptible of proof which compels a person to become a party upon view. That it may be more convenient for an informer to buy than to wait for a precarious customer cannot make the work one of necessity.

The defendant was properly convicted In the earliest law upon the observa- and the judgment of the magistrate is tion of Sunday, which seems to be the affirmed, and the appeal dismissed, at the edict of Constantine, heretofore referred cost of the appellant.