Annie Bodee and Fannie Bodee were convicted of larceny, and bring error. Affirmed. Mr. Swartz and F. Parker, for plaintiffs in Charles B. Ivins and A. H. Johnston,

for the State.

DIXON, J. The defendants below, Annie Bodee and Fannie Bodee, were jointly indicted for stealing the coal of David A. Statesir, at Freehold, on January 31, 1893.. The substance of the accusation was that they had stolen the coal which dropped along the railroad track while being shoveled from a car into a wagon, and the defense was that the coal taken did not belong to the complainant, and that coal so dropped was abandoned by its owner, or at least the defendants believed it was. On the trial in the Monmouth sessions exceptions were sealed, on which the defendants now rely for the reversal of their conviction.

The first exception is to the admission of testimony on the part of the state that the complainant had, on the day before the alleged larceny, caused Elizabeth Bodee, the daughter of one defendant and sister of the other, to be arrested for picking up his coal in the same locality. This testimony, coupled as it was with evidence that the defendant Fannie, before committing the alleged offense, knew of Elizabeth's arrest, and the reason for it, was competent to disprove the existence of any belief on Fannie's part that the complainant had abandoned his coal. The ground on which the defendants based their objection to this testimony-that the transaction was covered by another indictment-manifestly could not detract from the force of the facts as notice to the defendants. State v. Raymond, 53 N. J. Law, 260, 265, 21 Atl. 328.

Several exceptions were taken to the exclusion of testimony offered by the defendants to show the practice of owners of coal on the one hand and of poor people on the other with regard to gathering up the coal dropped in unloading cars. This testimony was legitimate on the questions whether the owners had abandoned such coal, and whether others who picked it up believed it was abandoned; and the exclusion of the testimony would have called for a reversal of this conviction, had it not appeared on the trial as an undisputed fact, proven by the defendants themselves, that they knew the complainant, before and at the time of the alleged larceny, was insisting on his right to his coal. With this knowledge it was impossible for them to sustain a defense on the theory that they believed the complainant had abandoned his coal. The exclusion of the testimony could not have prejudiced the defendants in maintaining their defense upon the merits, and therefore will not justify a reversal. Revision, p. 284, § 89; Hunter v. State, 40 N. J. Law, 496.

On cross-examination of the constable who had arrested the defendants while engaged

in gathering the coal, he was asked by defendants' counsel, "Why did you not take the coal?"-meaning the coal picked up by the defendants, so that it might be produced for identification at the trial. The question being excluded, the defendants excepted. As the witness had already on cross-examination thrice answered the same question, the ruling was not error. Several other exceptions relate likewise to the repetition of questions, or to the mere order of proof, matters which are within the discretion of the trial court; and in this case no legal error was committed in its exercise. State v. Fox, 25 N. J. Law, 566; Insurance Co. v. Barracliff, 45 N. J. Law, 543.

Exceptions were also sealed on the refusal of the court to charge according to requests presented by the defendants. Most of these requests are so plainly erroneous that no comment upon them is deemed necessary. One request was that the court should "define felonious intent in law." The court refused further than in the charge it had defined it, and thereupon an exception was allowed. The charge was to the effect that the defendants, to be guilty, must have intended to convert the coal to their own use, and make it their own property, without the owner's consent; must have taken the coal wrongfully and fraudulently; must have feloniously and fraudulently stolen the coal; that if they honestly believed they had a right to take it, the jury should acquit them; that a wrongful taking without felonious intent to steal would be a mere trespass. Some of these instructions were framed by the defendants' counsel, and we think that all together they indicated to the jury with reasonable plainness that the defendants should not be convicted unless they had taken the coal with a fraudulent purpose to take the property of another, and a consciousness that they had no right to take it. An intent of that description is felonious. There being no request for any specified definition of felonious intent, we consider the charge on that point sufficient.

The remarks of the court on the facts of the case were not erroneous. The judgment must be affirmed.

ABBETT and SIMS, JJ., dissent.

COSTELLO v. PROSPECT BREWING CO. (Court of Errors and Appeals of New Jersey. Nov. 19, 1894.)

PAYMENT BY WIFE OF PART OF HUSBAND'S DEBT -LIEN.

A wife, to whom her husband had made a voluntary conveyance of an equity of redemption in real estate, paid, with her husband's consent, out of her own and her children's earnings, a portion of the mortgage debt. On a bill, filed by her husband's precedent creditors, to set aside the conveyance to the wife as fraudulent, held, that the decree should

preserve the right of the wife to a lien for the amount which she had so paid.

(Syllabus by the Court.)

Appeal from court of chancery.

Bill by the Prospect Brewing Company against Ann Costello and others to set aside conveyances as fraudulent. From the decree, Ann Costello appeals. Reversed.

D. J. Pancoast, for appellant. Alfred Hugg, for appellee.

REED, J. The bill was filed by the Prospect Brewing Company, which held three judgments against Thomas K. Costello, one for $4,700, another for $890, and still another for $320, all entered on December 31, 1890, for debts incurred in 1887. Executions issued upon these judgments were returned unsatisfied. The bill charges that Thomas K. Costello is the real owner of certain pieces of real estate, the paper title to which is in the name of his wife; and prays that the conveyances to her may be set aside, and the title to the same declared to be in the husband, so as to subject the said real estate to the lien of the said judgments. One of these pieces of real estate was conveyed to her directly, by one Bernard Lyon, in 1887; another by Robert Wallace, in February, 1888; another by Joseph J. Allen, trustee of William B. Ellis, in December, 1883; and another by William B. Ellis and wife on the same day. None of these conveyances were made to the wife by the husband either directly or indirectly. The ground upon which the husband's creditor claimed a right to subject these several pieces of property to the payment of his judgments was that the property had been paid for by the wife out of money which was the husband's. The vice chancellor who heard the cause refused to recognize this claim of the creditor, and no appeal has been taken from the decree on this ground. But, in addition to the pieces of property already mentioned, there was another, the title to which was in the wife, and which the bill also prayed might be subjected to the payment of the judgment creditor's debt. This piece of property had been conveyed to Thomas K. Costello, the husband, by one Robert Conway. Thomas K. and his wife gave to Conway, at the time of the purchase, a mortgage for $2,000. The property, as I gather from the testimony, was when sold subject to a $2,000 mortgage; so that the property, when in the hands of Thomas K., was incumbered to the amount of $4,000. He held it for a year or more, and, being unable to pay the interest upon the mortgages, he conveyed it, on January 9, 1890, to John Conway, son of Robert Conway. John and his wife on the same day conveyed to Mrs. Costello. The conveyance from the husband to the wife, through John Conway, seemed to have been voluntary. The mortgages of $2,000 each were upon the premises, and, although $4,010 is mentioned as the consideration, Mrs. Costello swears that no cash passed. The devolution of title

to this property differed from the titles to the other pieces of property in the particular that it passed to the wife from the husband. Inasmuch as the conveyance of the equity of redemption in it was voluntary, it was voidable as to antecedent creditors, without respect to the intention of the parties in making the deed. It follows that the decree, in avoiding it and subjecting it to sale for the payment of these judgments, was entirely equitable. There is, however, a feature of the case which does not seem to have been presented to the court of chancery, which seems to call for a modification of the decree. appears that the wife, since she has had the title to the equity of redemption in this property, has paid $1,000 on the mortgage debt. This fact was used by the counsel for the appellant as a reason why the conveyance to the wife should be permitted to stand.

not pressed that a lien for the amount of this payment should be preserved to the wife in case the conveyance was set aside. In the light of the testimony in the cause, I think that she is entitled to this. The evidence is that the money with which this payment was made was derived from the same sources as was the money which went to pay for the pieces of real estate already mentioned, the title to which was permitted to remain in the wife. The wife had, for several years, conducted a business. Her husband, neither by disposition nor habits, was fitted for business, and the support of his wife and children fell upon the wife's labor and business management, in which he seems to have taken no part. From the proceeds of her business, and from the wages of her children earned in a neighboring mill, she bought land, borrowed money from building and loan societies, erected houses for renting purposes, and out of the proceeds derived from these sources paid the sum named upon the mortgage incumbrance upon this property. The husband laid no claim to these proceeds of the labor of his wife and children, but, on the contrary, recognized the right of his wife to have unrestrained control over both. Now, while the husband has the right to the earnings of his wife if he chooses to exercise that right, yet he is not bound to do so. The earnings of a married woman, working on her own account, or by her husband's permission, or earned in working for herself without his permission, if given to her by him, are her separate property, and within the provisions of the married woman's act; and a husband is not bound to compel his wife to labor for his creditors or to appropriate her earnings to them. His permission and gift to her are valid against his creditors. Peterson v. Mulford, 36 N. J. Law, 481. The right of a father to forego his claim to the earnings of his children is equally clear. He may sell or give to the infant his time, or authorize him to make contracts in his own name and receive pay therefor, and in such case the minor may sue for and recover his wages. Wood, Mast. & Serv.

(2d Ed.) § 25; Snediker v. Everingham, 27 N. J. Law, 143; Campbell v. Campbell, 11 N. J. Eq. 268. There is no rule of law which requires the husband to compel the wife, or a parent to compel his children, to work for his creditors. The decree should be modified so that Mrs. Costello may be subrogated to the right of the mortgagees for such amount as she may have paid upon the mortgages, so that her lien may be established to that extent in preference to the lien of the creditors' judgments.

There is another objection taken to the form of the decree. The objection is that the decree fixes upon the wife a personal liability to pay the judgments, and that it can be enforced as a judgment by an execution which may be levied upon any of her property. This part of the decree directs that she shall pay the judgments before a certain day, and that, in default thereof, an execution issue to make the money out of this piece of property. This form of the decree is intended merely to permit the wife to save this property from sale, if she sees fit, by paying the judgments. The effect of a failure to make such payment is fixed by the decree. It is that execution shall issue, not against all the wife's property, but only to sell this particular property. The judgment is reversed.

TOWNSHIP OF EAST BRUNSWICK V. CITY OF NEW BRUNSWICK. (Court of Errors and Appeals of New Jersey. Nov. 19, 1894.) EQUALIZATION

ΤΑΧΑΤΙΟΝ
ORDER OF STATE
BOARD OF TAXATION-CERTIORARI-HARMLESS
ERROR-JURISDICTION OF Board.

1. If the state board of taxation, upon a complaint of a taxing district under section 8 of "A General Act Concerning Taxes," approved March 19, 1891, increases the valuation of another taxing district, it should proceed to add that increased valuation to the unchallenged valuations of all the other taxing districts of the county, and then to apportion the county and state tax to be raised among the taxing districts in the proportion of the valuation of each to the total valuations.

2. A taxing district, the valuation of which has, upon complaint, been increased, cannot by certiorari object to the determination of the state board because it has imposed on it an increase less than its adjudication required, nor because the board erred in apportioning the tax to be raised, when such error does no injury to it.

3. Quaere as to what action is within the jurisdiction of the state board of taxation to review under said act.

(Syllabus by the Court.)

Error to supreme court.

Certiorari prosecuted by the township of East Brunswick to review a judgment and order of the state board of taxation. There was a judgment dismissing the writ (29 Atl. 422), and the township of East Brunswick brings error. Affirmed.

Alan H. Strong, for plaintiff in error. Robert Adrian, for defendant in error.

MAGIE, J. Plaintiff in error, the township of East Brunswick, was the prosecutor of a certiorari which brought before the supreme court the judgment and order of the state board of taxation made under the provisions of "A General Act Concerning Taxes," approved March 19, 1891 (Laws 1891, p. 189), whereby the county and state school tax to be raised in that township for the year 1893 was increased. The supreme court dismissed the writ, on the ground that it did not appear that prosecutor was in any degree injured by the alleged errors of the state board. It is now contended that the judgment of the supreme court was erroneous, and should be reversed, and a judgment be rendered setting aside the order of the state board. Error will lie upon such a dismissal of a certiorari. Hoxsey v. Mayor, etc., of Paterson, 39 N. J. Law, 489; Middleton v. Robbins, 54 N. J. Law, 566, 25 Atl. 471. By the eighth section of the act before mentioned, the state board of taxation is given jurisdiction, inter alia, over complaints of any "taxing district" feeling itself aggrieved by the action of any "board of equalization," and power is conferred on the state board to "revise and correct the determination of such county boards of equalization, by fixing the amount each taxing district shall raise in just proportion according to the true value of the taxable property therein." An assessment made within the power granted is declared to be final and conclusive.

The return to the certiorari contains a complaint made to the state board by the city of New Brunswick, a taxing district in the county of Middlesex, and the judgment and order of the state board made thereon. Nothing else appears in the record, and what the action of the state board was can only be discovered from its judgment and order. The complaint was that the valuations of property for taxation for the year 1893 in certain townships of Middlesex county (including East Brunswick) had not been made at the true value, but at less than the true value, whereby the complaining city was injured by being required to pay a greater proportion of county and state school tax than was lawful. The complaint did not show that the valuations complained of had been the subject of action by the county board of assessors, which board, having power to raise the valuation of property in any taxing district when relatively less than the valuations of other districts (Revision, p. 1155, § 72), and thus to equalize the burden of taxation among such districts, may be called a "County Board of Equalization." None of the reasons filed in the supreme court challenge the jurisdiction of the state board to act upon such a complaint, and no opinion is intended to be expressed upon that point.

The first reason filed in the court below is based upon the ground that the order of the

state board creates differences in the rate of taxation among the taxing districts of the county. But such a result, though clearly erroneous, will not support an objection by prosecutor to the tax imposed upon it, unless it has been made to appear that its burden not only varies from that borne by other taxing districts, but is greater than by law could lawfully be imposed upon it. If other taxing districts have been improperly valued, prosecutor's remedy was by proper proceedings to compel the valuations to be increased to the true value, as required by law. Cooper v. De Bow, 46 N. J. Law, 286.

Counsel for plaintiff in error incidentally argues that it was the duty of the state board, upon such a complaint, to revise the valuations of all the taxing districts in the county. To this objection it must be answered that the point is not presented by any reason, and the fact that they did not do so does not appear. Nor, in my judg ment, were they required to do so. In the absence of any complaint, the unchallenged valuations may well be presumed to have been made according to true value. The adjudication of the state board upon this complaint was that the taxable property in East Brunswick had been valued at only 80 per cent. of its true value. Apparently with the view of curing this error, the board ordered 20 per cent. to be added to the assessment of taxable property in that township. If the order in this respect is to be construed as a direction to add to the valuation complained of 20 per cent. of its amount, it was clearly erroneous; for the adjudication was that such valuation was only 80 per cent. of the true value, and, to reach the true value, it must be increased 25 per cent. What the actual increase was does not appear, but, if it was arrived at upon the construction above indicated, the error was in favor of, and not against, plaintiff in error.

The state board further ordered that the township of East Brunswick should raise, for county and state school tax for 1893, $14,661. The amount previously imposed on the township was $12,320. How the increase of $2,341 was arrived at does not appear. It is not 20 per cent. of $12,320, and the latter sum is 80 per cent. of $15,400. In the absence of proof to the contrary, it must be assumed that the increase was determined in the proper manner. The true mode of determining the amount of increase is plain. The increased valuation of East Brunswick should have been added to the valuation of all the other taxing districts, and the total should have been compared with the amount of county and school tax to be raised, and with the valuations of each district. Such comparison would have given a rate of taxation necessarily less than the rate previously fixed and the proportions or quotas to be raised in the several taxing districts which would vary from those previously fixed, in

that the quota of East Brunswick would be greater, and that of each of the other districts would be less, than before. As the case does not disclose the valuations of all the taxing districts, nor the previous tax rate, there are no data upon which we can make the calcu lation. We must assume that the state board made it, and made it correctly.

The second reason assigned for the re versal of the proceedings was that the state board did not reach its conclusion upon a consideration and comparison of the duplicates of all the taxing districts of the county, nor upon the valuations throughout the county. But the grievance complained of was the undervaluation in certain taxing districts. The valuations in other districts were unchallenged, and might be assumed to have been correctly made. A comparison of all the valuations was necessary, as has been stated, to determine the proportion of the total tax to be raised by each district. In the absence of proof to the contrary, such comparison must be presumed to have been made. As each taxing district was interested in the determination, it would, doubtless, be proper, and perhaps necessary, for each to be brought before the state board. It does not appear that the taxing districts were not all represented before the board; but, if it did appear, the error in that respect cannot be ground of objection on the part of the plaintiff in error, for it had no interest in the determination of the board as to the proportions to be raised by other taxing districts. Such determination was a mere distribution of the increase required to be raised by plaintiff in error, and whether that increase was correctly distributed or not was a matter of no concern to it.

The third and fourth reasons assigned are based upon that part of the order of the state board which deducted from the amount of county and state school tax to be raised by the city of New Brunswick the whole $2,341, which was imposed by way of increase upon plaintiff in error. This was clearly erroneous. The city was entitled to no more than its share of such increase. But, if the increase was lawful, it was a matter of no consequence to plaintiffs in error what was done with it. Other taxing districts which were thereby injured might complain, but a reversal of that part of the order would not benefit the township of East Brunswick.

For these reasons, the judgment below dismissing the writ of certiorari must be affirmed.