ation of such property. But the statute cannot be taken in its broadest sense. There must be a restriction-a limitation-upon its literal meaning, by construction. Otherwise, the bills, notes, and bonds in the possession of a temporary visitor in the state-in fact, those in possession of a traveler passing through it-might be taxable in it. They would be within the state, and within the letter of the statute. But such could not have been the intention of the legislature. It is the general rule of law that the domicile of the owner is the place where, by legal fiction, his personal property is regarded as having its situs, and where it is to be taxed." After further consideration, and the citation of numerous cases, it was said: "Those cases all hold that such property cannot be so taxed unless it has acquired what we denominate a 'business situs' in a state other than that of the owner. The property in the present case had acquired no such situs." Every feature of that case presents a stronger claim for the exercise of the taxing power than the present. All that was said in that case applies to the present. But it is said that the appellee was precluded by the action of the county board of review. When we have found that the property was not within the jurisdiction of the state, we have found the absence of an element necessary to the validity of the board's action; and in such case the action is void, and may be attacked collaterally. There was no error in overruling the appellant's demurrer to the appellee's complaint to enjoin the collection of the tax, and the judgment of the circuit court is affirmed.

(52 Ohio St, 358)

CHAFFEE v. FOSTER. (Supreme Court of Ohio. Feb. 5, 1895.) FORFEITURE OF LIFE ESTATE-TAX SALE-FORECLOSURE OF REMAINDer.

The purchaser of an estate in remainder at a sale on foreclosure of a mortgage upon the estate, made subject to the life estate on which the remainder is limited, cannot claim a forfeiture of the life estate from a sale of the lands at delinquent tax sale and a failure to redeem within the time prescribed by section 2852, Rev. St., where the omission occurred prior to the foreclosure, and there is nothing to show but that the forfeiture was waived by the mortgagor. Williams and Bradbury, JJ., dissenting. (Syllabus by the Court.)

Error to circuit court, Summit county.

Action by Elizabeth Foster against one Chaffee to quiet title. Judgment for plaintiff, and defendant brings error. Affirmed.

Marvin, Sadler & Atterholt, for plaintiff in error. Tibbals & Frank, for defendant in

error.

PER CURIAM. This was a suit to quiet title. The plaintiff below, Elizabeth Foster, was the owner of a life estate in the lands described in her petition, devised to her by the will of her husband. The lands were

sold by the auditor at delinquent tax sale, January 19, 1886, and were not redeemed by her within a year from the sale. One Dosenberry had a mortgage on the interest of the remainder-man in the property, and paid to the purchaser at the tax sale the amount of his claim, and took an assignment of the auditor's certificate of the purchase. His mortgage not being paid, he caused it to be foreclosed, and the plaintiff in error, Chaffee, became the purchaser. In the distribution of the proceeds, Dosenberry was allowed and paid the amount he had paid to the purchaser at the tax sale; and claiming to be the owner in fee simple, and entitled to the possession of the land, on the ground that under section 2852, Rev. St., the estate of the plaintiff in the land was forfeited, the suit was brought by her to quiet her title. Among other things, she averred in her petition that the sale on foreclosure was made "without affecting and subject to her life estate in the premises," on which an issue was taken by an answer. The case was appealed to the circuit court, which found on the issues joined for the plaintiff, and made a decree quieting her in the possession of her estate. Held, that the sale on foreclosure having been made, as found by the court, subject to the life estate of the plaintiff, the purchaser at the sale acquired simply an estate subject to the life estate of the plaintiff. The fact that, by omission to redeem the land from the sale for taxes within the time prescribed by section 2852, Rev. St., may have worked a forfeiture of her life estate to the mortgagor, as the next in estate, does not enlarge the estate acquired by the purchaser at the sale on foreclosure, the omission having occurred prior to the foreclosure. The mortgagor may have waived the forfeiture, which he could have done, without in any way impairing the rights of the mortgagee under the mortgage. All the estate subject to the mortgage was an estate in remainder, to commence as an estate in possession on the death of the plaintiff or her remarriage, neither of which events has occurred. Judgment affirmed.

WILLIAMS and BRADBURY, JJ., dissent.

(52 Ohio St. 346)

STATE v. KENDLE.

(Supreme Court of Ohio. Feb. 5, 1895.) CONSTITUTIONAL LAW-APPOINTMENT of Jury COMMISSIONERS.

The act of the general assembly requiring the common pleas judges of the several subdivisions of the common pleas districts of the state to appoint jury commissioners for the counties in their respective subdivisions, passed April 23, 1894 (91 Ohio Laws, 176), is not in conflict with any of the provisions of the constitution of the state, and is a valid law. Spear and Bradbury, JJ., dissenting.

(Syllabus by the Court.)

Exceptions from court of common pleas, Brown county.

Edward Kendle was indicted for misdemeanor, and pleaded in abatement. The state demurred. From a judgment overruling the demurrer the state excepted. Exception sustained.

David Tarbell, Pros. Aty., for plaintiff in error. John M. Markley, for defendant in

errol.

MINSHALL, J. On April 23, 1894, an act was passed by the general assembly of the state (91 Ohio Laws, 176) providing for the appointment of a jury commission and the selection of juries in all except the following counties of the state, to wit, Cuyahoga, Franklin, Hamilton, Lucas, Montgomery, and Mahoning, each of which, as the act states, has a special act governing the selection of juries. The act requires that on or before the fourth Monday of May of each year the judges of the court of common pleas in each subdivision of the common pleas districts of the state shall appoint four judicious freehold electors to be commissioners of jurors in each county for one year. The act excludes all attorneys at law from the commission, and not more than two persons of the same political party are to be selected. After taking an oath to faithfully discharge their duties, and return no one who has directly or indirectly solicited to be returned, or that they believe unfit for the position, or will return a partial verdict, and having been instructed as to their duties under the act by the court, they are required to meet on the fourth Monday of May at the office of the auditor of the county, and select such number of judicious and discreet persons, having the qualifications of electors, as the court may direct. The name of each person so selected is to be written on a separate piece of paper, and placed in a wheel, to be previously provided by the county commissioners; and, having been securely locked, the wheel and the key are to be placed in the custody of the county clerk. From this wheel, in the manner provided in the act, grand and petit juries are to be drawn when directed by the court. By a grand jury drawn under the provisions of this act, Edward Kendle was indicted for a misdemeanor in Brown county. He filed a plea in abatement setting up the drawing of the jury under the act, and, claiming the act to be unconstitutional, asked to be discharged. The state demurred to the plea. The demurrer was overruled, and the defendant discharged. The prosecuting attorney excepted to the ruling of the court, and brings the question here on a bill of exceptions for the judgment of this court on the accuracy of the ruling.

1. The first objection to the validity of the act is that it is a law of a general nature, not uniform in its operation throughout the state, as required by section 26, art. 2, of the constitution. The act applies to all the

counties in the state except those before named, which are excepted because each has a jury system of its own, provided by law. The validity of the act relating to Cuyahoga county was questioned on this ground in the case of McGill v. State, 34 Ohio St. 228, but the objection was overruled, and the law held valid. The question was fully and exhaustively discussed by Boynton, J., in delivering the opinion of the court, and we are not now disposed to question the soundness of that decision, and are, therefore, of the opinion that the present act is not invalid on this ground.

2. It is also claimed that the statute is invalid, because it provides for the appointment of the members composing the commission, instead of their election by the electors of the county, as is required in the case of all county officers by section 2, art. 10, of the constitution. This presents a question of more difficulty, for if, within the meaning of this section, the commissioners are to be regarded as county officers, they cannot be appointed, and the statute is invalid. But in considering the question we are not to forget the rule that forbids à court from declaring an act of the legislature invalid on the ground that it violates the constitution. To do this, the court must be clearly of the opinion that such is the case. As long as it has a reasonable doubt about it, the doubt should be resolved in favor of the law and the judgment of the legislature. The case of State v. Brennan, 49 Ohio St. 33, 29 N. E. 593, is relied on. In that case the act held invalid created the office of "stationery storekeeper" for Hamilton county, to be filled by the appointment of the clerk of the court of the county. It was a separate and distinct office provided for that county. The power of the legislature to provide for the appointment of persons to act as assistants in an office filled by election has not been, and cannot well be, questioned. It is on this principle that the appointment of deputy clerks, deputy sheriffs, and so forth, are made and recognized, each of whom performs many, and in some cases all, the duties of the office in which he acts as deputy. So as to these jury commissioners, they are appointed by the common pleas judges to assist in the administration of justice, as are master commissioners and court constables. They are but handmaids of the court in the selection of judicious and discreet persons to serve on such juries as are required in the trial of causes and the presentment of indictments. A similar view was adopted by the supreme court of West Virginia in the case of State v. Mounts, 36 W. Va. 179, 184, 14 S. E. 407. In that case the question arose on the power of the courts to appoint jury commissioners, conferred by a statute of the state; it not being competent to the legislature, by the constitution of the state, to confer on "any court or judge thereof" the power of appointing "officers." "The question here

favor which, if found by the jury, might have changed the result. Trustees v. Kirk, 68 N. Y. 460; Stone v. Flower, 47 N. Y. 566. His exception challenges a scrutiny of the whole evidence, and the party upon whose motion the direction is made, and who is the actor in procuring it, takes the risk; and it is no answer to the exception that, if the other party had called the attention of the court to the evidence which required a submission of the case to the jury, the direction might not have been given. But where a defendant, as in this case, makes a motion for a direction without specifying any ground, and the motion is denied, and he excepts to the ruling, and a verdict is rendered against him, he cannot maintain his exception on appeal on showing that the facts found did not authorize the verdict, provided the failure of proof might have been supplied if the attention of the opposite counsel had been called to the defect. It has been frequently held that a general objection to evidence, without specifying any ground, is ineffectual, unless the evidence offered could under no circumstances be rendered competent; and an exception to the denial of a motion for nonsuit, not pointing out any defect in the evidence, will not entitle the party to a reversal on appeal, on the ground that the evidence was insufficient to sustain the verdict if the defect was, in its nature, one which might have been remedied if attention had been called to it. The point attempted to be argued in this case was the contributory negligence of the intestate in not looking behind him for the approaching train after he left the corner of Sweeney street. It was a question which, in its nature, was one upon which additional proof might have been given by the plaintiff. It may be, and probably is, true that her evidence on that question had been exhausted, but we cannot know this for certainty. The precedent which a reversal of this judgment would set, that a general exception to a refusal to direct a verdict raises the question whether the evidence given was sufficient to sustain the verdict given, when the attention of the court and counsel on the trial was in no way called to the defect, and when the defect was in its nature amendable, would tend in many cases to great injustice. The case of an action for conversion where a demand was necessary, but was not proved, although it may have been made, is an illustration. It is but fair to the court and to the parties that in some general way, at least, attention should be called by the party asking a direction to the point upon which the motion is based. Such a practice will prevent surprise, and contribute to an intelligent comprehension by the court and the opposite party of the situation, and unnecessary litigation will thereby in many cases be avoided. The judgment should be affirmed, with costs. All concur, except FINCH, J., not voting. Judgment affirmed.

(145 N. Y. 327)

VAN SLOOTEN v. DODGE. (Court of Appeals of New York. March 12, 1895.)

TORT OF EXECUTOR-LIABILITY OF ESTATE.

A decedent's estate is not liable for the conversion by the executor of property claimed by him as part of the estate, the executor being personally liable. 27 N. Y. Supp. 666, reversed.

Appeal from supreme court, general term, Second department.

Claim by Mary L. Van Slooten against Edward Dodge, as administrator with the will annexed of Harry E. Dodge. From a judgment of the general term (27 N. Y. Supp. 666) affirming a judgment of the general term of the Second department, the executor appeals. Reversed.

H. B. Hubbard, for appellant. Merritt E. Haviland, for respondent.

GRAY, J. This respondent presented a claim against the executor of the estate of Harry E. Dodge, deceased, for a diamond ring, of the value of not less than $500, which she alleged the testator had given to her, and which, after his death, at the request of the executor, she had handed to him for inspection. She alleged that he had refused to return it to her, upon the ground that it belonged to the estate of the deceased. The executor disputed the validity of the claim, and, upon his offer to refer the same, a reference was consented to and ordered. The referee reported in favor of the claimant. His report was confirmed at the special term, and a motion to set it aside and for a new trial was denied. Upon appeal the general term affirmed the judgment and the order, but by a divided court, Mr. Justice Cullen dissenting from his associates, upon the ground substantially that, as no claim against the deceased had been established, no recovery could be had in such a proceeding. I think his was quite the correct view of the case. I think that the findings of the referee that the deceased, in his lifetime, had given the ring to the claimant, and had delivered it to her with the intention that she should possess it, were in accord with the evidence in the case. There is but little evidence from which a contrary inference could be made. That being the case, and the claimant having shown that she had lost possession of the ring solely through the act of Mr. Wheeler, who was the executor, it is difficult to understand how such a proceeding as this could be maintained. The finding of the referee with respect to the claimant's loss of possession of the ring was as follows: "That shortly after the death of said Harry E. Dodge the claimant delivered said diamond ring to said Charles H. Wheeler, as executor, at his request, but not intending to, nor did she thereby, release or transfer her right and title thereto as owner." It seems that upon the