Railway v. Muns.

long car, which was composed of two short cars; and, that it was too small and not properly welded.

No objection was made to that testimony, presumably upon the theory that it tended to show negligent running of the car, greater care being required on account of light and defective appliances.

If that testimony was admissible under the pleadings, the jury was warranted in finding that the company was negligent in attempting to run that long and heavy car with a light and defective brake. Aside from the brake, we think the great weight of the evidence shows that the officials of the company did all in their power to stop the descending car and to give warning to Muns of its approach, by shouting and ringing the gong; and we think the court below properly charged the jury that there was no evidence tending to show willful negligence.

We think further that the boy, by mounting the bumper, which was not a place for passengers, nor a step or platform en route to a place for passengers, lost his rights as a passenger to the high care which would have been due him as such.

It was, moreover, a place of manifest danger, else the bumper would not have been constructed. It amounts to a red flag of warning to all concerned. The peril was such as might naturally result and reasonably have.been expected. Nieboer v. Railway, 128 Mich. 486 [87 N. W. Rep. 626]; Bard v. Traction Co. 176 Pa. St. 97 [34 Atl. Rep. 953; 53 Am. St. Rep. 672].

An attempt was made to show by isolated instances that riding on the bumper was a custom, permitted by the company, and known to Muns. Objections to that mode of proving a custom should have been sustained. Muns testified that he and his companions had ridden on bumpers with the permission of certain conductors, but it did not appear that this conductor was one of them; or that he ever saw said conductor. On the contrary Muns says that he did not see the conductor and had not delivered his transfer. So that he did not rely on any past experience with this official.

Furthermore, if it had been a custom and proven so to be, it was one of such manifest negligence that it would not be recognized in law as binding upon anybody. Customary negligence is unknown to the law. Chicago W. D. Ry. v. Klauber, 9 Ill. App. 613, 614; Hamilton v. Railway, 36 Iowa 31, 32; Ohio & Ind. Torpedo Co. v. Fishburn, 61 Ohio St. 608, 620 [56 N. E. Rep. 457]; Hickey v. Railway, 96 Mass. (14 Allen) 429, 433.

Still further it appears from the manifest weight of the evidence that there was room in the car and that Muns made no examination of

Franklin County.

the situation and did not attempt to get upon the steps or platform. By the testimony of himself and others it also appears that after he had mounted the bumper, passengers were still getting on and off the car. But, if the car had been crowded to the utmost, it was his duty to wait a reasonable time for another car upon which there was room. His companion-who had obtained a place on the car step, but alighted after the accident-found room upon the next succeeding car, where his transfer was available.

So it seems to be clear that Muns was guilty of negligence contributing directly to the accident, and cannot recover.

We think the court erred in instructing the jury that a custom of riding on the "bumper" with the assent of the conductor would excuse Muns for taking that position, and especially where the court says, on page 482, if they found an assent "on this particular occasion,' there being no evidence whatever as to such assent.

For the above errors and in not sustaining a motion for a new trial, the judgment of the common pleas court is reversed and the cause remanded.

Wilson and Sullivan, JJ., concur.

JUSTICE OF THE PEACE-TRIAL.

[Cuyahoga (8th) Circuit Court, November 7, 1904.]

Hale, Marvin and Winch, JJ.

JOHN B. STARK V. WILLIAM TREAT ET AL.

JUSTICE OF PEACE MAY HEAR EVIDENCE AND ARGUMENTS OUTSIDE OF HIS TOWNSHIP BY CONSENT.

A justice of the peace who has jurisdiction of the subject-matter of a civil action, may by consent of all the parties, hear the evidence and arguments of counsel outside of the township in which he resides and for which he was elected. Such procedure is not, in such case, obnoxious to Lan. R. L. 914 (R. S. 582) defining the jurisdiction of justices in civil actions.

APPEAL from Cuyahoga common pleas court

William Howell, for plaintiff.

J. W. Sykora, for defendants, cited:

Laning R. L. 914 (R. S. 582); Butt v. Green, 29 Ohio St. 667; Mason v. Alexander, 44 Ohio St. 318 [7 N. E. Rep. 435]; Collins v. Bingham Bros. 12 C. D. 825 (22 R. 533); Mobile v. Emanuel, 42 U. S. 95.

Stark v. Treat.

MARVIN, J. (Orally.)

The defendant, Treat, was a justice of the peace of Brooklyn township, in this county. The defendant, Bell, was a special constable acting for said justice of the peace. The defendant brought a suit against. the plaintiff, Stark, before the defendant, Treat, the justice of the peace.

The papers, summons and the like, in this suit were issued by said justice in Brooklyn township, where he lived, and in which township he was elected.

By consent of all the parties to the case, the testimony was taken in the township and city of Cleveland, in the same county. The judgment was entered upon the docket of the justice of Brooklyn township. Whether the actual writing was done in Brooklyn township or not does not appear. It is immaterial. The only question is: May a justice of the peace, having jurisdiction of the subject-matter, by consent of all the parties, hear the evidence and the arguments outside of the township in which he lives and for which he was elected.

The statute on the subject is Lan. R. L. 914 (R. S. 582), which provides:

"The jurisdiction of justices of the peace, in civil cases, unless otherwise directed by law, is limited to the township wherein they have been elected, and wherein they reside; but no justice of the peace shall hold court outside the limits of the township for which he was elected."

The statute, as it now reads, was enacted on April 19, 1898 (93 0. L. 146). Prior to that, the section read exactly as it now reads, with the exception of the words, "But no justice of the peace shall hold court outside of the limits of the township for which he was elected." That sentence was added as an amendment to the statute as it was before. Should it be held that the statute as it now is prohibits a justice of the peace from hearing the evidence in a case and the arguments of counsel in a township other than his own, where the parties consent? seems to us that the addition of these words to the section make it mean nothing other than it meant before. The justice had no jurisdiction before outside of his township and it is only by virtue of statutes giving jurisdiction that courts have jurisdiction. It is a well-known fact that this court while sitting in this county has jurisdiction in Cuyahoga county only, and yet it is not an unusual thing for this court by agreement of parties, to hear the evidence and arguments in appeal cases, and to hear the arguments in proceedings in error in this county of cases pending in other counties. It is not unusual that parties request that the hearing be here; and we have in the same way heard in Summit county cases pending in Medina county.

Cuyahoga County.

There is a provision in the statutes that cases may be certified from one county to another, but not acting under that but simply by the consent of the parties the case may be heard in another county; it has been done again and again. It is not an extraordinary thing. I have in mind now a case which lasted a considerable length of time, where a judgment of the court of common pleas of the second subdivision of this judicial district was heard by a judge of that subdivision in this county, which is, I think, the third subdivision. When the parties have all consented that the hearing of a case shall be in a given place, there seems to be no good reason why such hearing should not be treated as a hearing within the limits of the territory in which the court has jurisdiction. There are a number of authorities that go to support the proposition that parties may consent to a hearing outside of the territorial jurisdiction of the court. A case directly in point is found in Cheesman v. Hart, 42 Fed. Rep. 98. The facts in the case were these:

A judge of the district court of the United States was assigned by one of the judges of the Supreme Court of the United States to sit in a circuit other than that in which he resided, to wit, in the district of Colorado. That was lawful, and the judge could be assigned so to sit. He went to Colorado and heard the case in that district. Motion for new trial was made. He went home to Nebraska, outside of the district of Colorado, and, by consent of all the parties, heard the motion for a new trial at his own home. His jurisdiction was thereafter questioned, and this language was used by the court, page 105:

"My jurisdiction to pass upon this motion is called in question on the ground that I am now acting under the order of Judge Brewer, which sent me to Colorado to hold circuit court in aid of the district judge. It was the pending litigation between these parties mainly which induced Judge Brewer to send me to Colorado, partly owing to the fact that Judge Hallett wished to be relieved from sitting in the cause on account of his relation to some of the parties. The trial of the cause would have been incomplete without a final disposition of the motion for a new trial. The right to try the principal cause carries with it the incident. Had I remained at that court until the coming in of the motion for new trial, four days after the verdict, as I might well have done, no question could possibly arise as to my jurisdiction to pass upon the motion. Equally true must it be that I might have returned to Colorado after the motion was filed, and taken it up and decided it. Counsel for both parties having agreed to waive the necessity or burden of such trip to me, my right to pass upon this motion must be viewed as if I had gone to Colorado, or remained there in the first instance, to hear the motion.".

Stark v. Treat.

We think that reasoning is good; that, applied to this case, the justice of the peace hearing the evidence and the argument in this township, by the consent of the parties, it is to be treated as having been heard in the township of Brooklyn and the case is to be treated as though tried in the township of Brooklyn. The suit here is brought to enjoin the justice, the constable and the plaintiff in the original action, from taking any steps toward the enforcement of judgment obtained by plaintiff against the defendant, Stark. We think the petition should be dismissed. That will be done.

Hale and Winch, JJ., concur.

DEEDS-COVENANTS-TAX LIENS.

[Hamilton (1st) Circuit Court, March, 1905.]

Jelke, Swing and Giffen, JJ.

*FOUNTAIN SQUARE THEATRE Co. v. ELIZABETH C. PENDERY.

1. GRANT OF "ALL RIGHT, TITLE AND INTEREST" TO REAL ESTATE CONVEYS ONLY SUCH INTEREST AS GRANTOR HAS, ETC.

A grant of "all the right, title and interest" of the grantor in and to certain real estate, without granting the land itself, conveys only such interest as the grantor has at the time of the conveyance.

2. COVENANT AGAINST INCUMBRANCES NOT BROKEN BY EXISTING TAX LIEN, WHEN. A covenant contained in a deed whereby the grantor conveys "all his right, title and interest" in and to certain property, that the premises are free and clear of all incumbrances whatsoever, and that grantor will forever warrant and defend the same unto the grantee, etc., relates only to the right, title and interest conveyed, and not to the land itself, and is not, therefore, broken by a lien for taxes existing against the property at the time of the execution and delivery of the deed.

ERROR to Hamilton common pleas court.

D. D. Woodmansee, for plaintiff in error.

Breach of covenants of title. Funk v. Cresswell, 5 Iowa 62; Loomis v. Bedel, 11 N. H. 74; Harrison v. Boring, 44 Tex. 255; Long v. Moler, 5 Ohio St. 272; Burr v. Lamaster, 30 Neb. 688 [46 N. W. Rep. 1015; 9 L. R. A. 637; 27 Am. St. Rep. 428]; Stambaugh v. Smith, 23 Ohio St. 584; Craig v. Heis, 30 Ohio St. 550; Rawle, Covenants 270, 281-296; Coburn v. Litchfield, 132 Mass. 449; Braman v. Bingham, 26 N. Y. 483; Foote v. Burnet, 10 Ohio 317 [36 Am. Dec. 90].

F. H. Kunkel, for defendant in error.

Where there is merely a conveyance of the "right, title and interest" of grantor in and to premises described in a deed, there is no lia*Affirming Fountain Square Theatre Co. v. Elizabeth C. Pendery, 15 Dec. 411.