there was an appropriation of the partnership property to pay a private debt, and there was also a fraud on the creditors of Spill because the transaction was a fraudulent preference. It is plain, however, that the defendant might have held the bills if he had not been a party to the fraud, but as he was a party thereto he never from the moment he took them had any title to them in equity as against Briggs, although no action founded on the property in the bills could have been brought against him by Briggs either alone in his own name or jointly in the names of himself and Spill. It may be that Briggs might have been able to have had an action founded on conspiracy, but that would have been a very different kind of action from the present, and would not have been founded on a property in the bills. However, after the bankruptcy of Spill, the assignees were entitled to take advantage of what was a fraud on the creditors, and to treat the indorsement by Spill as utterly void, and then when they did so, as was the case here, the state of the title to the bills became altered. The title of the assignees and of Briggs became then that of tenants in common of the bills, no property in which had ever passed as against them to the defendant. It is clear upon the authorities that when a transaction is a fraudulent preference it may be disaffirmed by the bankrupt's assignees, although the bankruptcy may not be carried back to an act of bankruptcy which was contemporaneous with or prior to such transaction. It is, therefore, unnecessary to consider whether the act of bankruptcy in this case can be carried back to a time before the commencement of the bankrupt's imprisonment. On these grounds, I think this rule should be made absolute.

BRETT, J.-The plaintiffs jointly claim these bills as partnership property, which they say has been wrongfully converted by the defendant. The defendant says that he is the indorsee of the bills, and that the

plaintiffs cannot jointly sue him for them. Now, I think that the defendant cannot be taken to be an indorsee of these bills as against either of the plaintiffs. He cannot be an indorsee as against the plaintiff Briggs, because to be such indorsee the indorsement of the bills must have been made by both partners or by one of them, who had either the authority of the other to do so, or was held out to the defendant as having such authority; but as the defendant here knew that Spill was indorsing the bills without the authority of Briggs, there was no indorsement of them as against Briggs. I think, also, that as the defendant knew that there was such want of authority there was no indorsement even as against Spill, although Spill himself might be estopped from saying so, and if that had been all his assignees would be estopped also. But the transaction was not only a fraud, but a fraudulent preference, and therefore the assignees had a right to disaffirm it, and to say that it was void as against them, and that there never had been a valid indorsement as against them. I may add, that I think that the assignees were trustees not only for the separate creditors of Spill, but for those of the firm. If there was no indorsement of the bills either as against Briggs or Spill's assignees, then, the bills being partnership property, it is an ordinary case of the assignees of a bankrupt partner joining with the solvent partner to recover the partnership property. Had the matter not been bills, but money, I think in a similar manner the assignees would have been entitled to have said that no property passed as against them, and that they might jointly with the solvent partner have sued the defendant for money had and received. However, it is not necessary to decide that point.

Rule absolute.

Attorneys-Venning, Robins & Venning, for plaintiffs; John Godwin, for defendant.

The plaintiff, a passenger by the defendants' railway, having taken a ticket by a train which stopped at short intervals, not exceeding five minutes each between each station, and having entered a carriage, sat by the door, which flew open and was shut by him between the point of departure and each of the first three stations at which the train stopped. At the third station the plaintiff called for a porter, but the train started too quickly for one to come. The plaintiff held the door, but getting tired let it go, and it again flew open. He then pulled it to with one hand and put his other arm out to fasten the lock, which was on the

outside, and put some of his weight on the door in doing so. The door opened and he fell out. It would have taken only two or three minutes to arrive at the next station, and only about five more to finish his journey :-Held, that there was no evidence to go to the jury of liability on the part of the defendants.

This was an action by the plaintiff, a passenger on the defendants' railway, against the defendants, for so negligently conducting themselves as to the fastening of the door of a carriage that the plaintiff in attempting to shut it fell out and was injured.

The form of the pleadings became immaterial, as a demurrer to the declaration was eventually withdrawn by agreement between the parties at the suggestion of the Court, and the case decided on the merits.

At the trial the following facts appeared:

The plaintiff took a third-class ticket from Waterloo, in Lancashire, to Liverpool, by a train which stopped at short intervals, varying from three to five minutes between each station. He got into a third-class carriage and sat down by the door, with his face towards the engine. The carriage consisted of two compartments, separated by a low back, and there were only two or three passengers in the compartment in which he was. When the train had proceeded a short distance the door flew open, and the plaintiff took hold of it with his left hand and shut it with his right. The train stopped at Seaforth, the next station, and after leaving that place the door flew open and the plaintiff closed it again. The train stopped at Marsh Lane, the next station, and after leaving it the door opened and the plaintiff shut it again. The train stopped at Bootle village, the next station, and the plaintiff called for a porter, but the train only stopped two or three seconds and started before any porter came. Between Bootle village and Sandhills, the next station at which the train stopped, the plaintiff for some time kept his hand on the door, and his arm getting tired he let it go, and it again flew open and was flapping about. The plaintiff took hold of it with his left hand and brought it to. He then put his right arm out to fasten the door (the fastening being on the outside), putting a little of his weight on the door, and, either from a jerk or otherwise, the door gave way and he was thrown out of the carriage. This happened about 500 yards beyond Miller's Bridge, a station where the train did not stop, and it would have taken about three minutes or so to arrive at Sandhills and five minutes more to get to Liverpool. At this place there was a curve, but the reports of the evidence did not make it clear whether the door in question was on the outside or inside of the curve, though it would appear to have been on the outside; nor did it appear whether there was any jolt or not when the plaintiff was attempting to shut the door.

A verdict was found for the plaintiff, with leave to the defendants to move to enter a

nonsuit or a verdict for themselves, on the ground that there was no evidence of liability.

A rule nisi having been obtained accordingly,

R. G. Williams shewed cause.-There are two questions: the one as to whether there was negligence on the part of the defendants, the other as to whether there was contributive negligence on the part of the plaintiff. First, was there any evidence of negligence on the part of the defendants? Now, looking to what occurred, the presumption is that the catch was defective, a defect which was not latent, and therefore there was evidence for the jury to find such negligence. Secondly, was there contributive negligence on the plaintiff's part? Now, it is not unreasonable for a passenger to close a door which flies open, and he does so at the risk of the company, and the Court cannot say as a matter of law that there can be no liability under such circumstances; and therefore this was a question for the jury.

[MONTAGUE SMITH, J. referred to Siner v. the Great Western Railway Company (1).]

In that case there was no evidence of negligence on the part of the defendants, but here there is.

[MONTAGUE SMITH, J.-Can a man voluntarily put himself in peril to avoid an inconvenience when the peril is out of all proportion to the inconvenience ?]

In Jones v. Boyce (2), where, through the breaking of a defective rein, the horses of the defendant's coach ran away, and the plaintiff, a passenger, jumped off and was injured, Lord Ellenborough laid down that if by the defendant's neglect a reasonable apprehension of danger was excited in the plaintiff's mind, the defendant was liable. It was not necessary to go further than that in that case, but the principle is capable of extension to such a case as the present.

Bayliss, in support of the rule.-Assume that there was negligence on the part of the defendants, yet it must be the proximate cause of the injury. But the defen

(1) 38 Law J. Rep. (N.8.) Exch. 67. (2) 1 Stark. 493.

dants' negligence here was not sufficiently the cause of it to make them liable. The plaintiff might have changed his carriage or sat still. His act was voluntary, and a volunteer is in the same position as an officer of the company, unless he does the act to avoid imminent peril, and there was none here; and further, if there be an alternative the company is not liable. In Siner v. the Great Western Railway Company (1) there was the alternative, though a most inconvenient one, of being carried on, and the company were therefore held not liable, and here the alternative is not more inconvenient than the one in that case, and if the alternative be between inconvenience and peril, if a man takes the latter he must take the consequences on himself.

BYLES, J.-I am of opinion that this rule should be made absolute. I agree that there is a distinction between this case and the case of Siner v. the Great Western Railway Company (3), because here there was negligence on the part of the defendants in not having a proper fastening, and but for the negligence of the defendants there would have been no accident; but still their negligence was not the immediate or effectual cause of the accident, and it was the negligence of the plaintiff in attempting to shut the door, and putting at least some of his weight on the door while the train was in motion, which was the proximate cause. Did, then, the defendants' neglect necessitate the plaintiff's act, or was there an alternative course for him to adopt? Now, it is plain that he might have changed his place or have held. the door as he had done before, and that he had by previous trials experienced the difficulty as to shutting the door. These alternatives were not dangerous or inconvenient; and as the alternatives were of no serious inconvenience he had no right to run the risk incurred by putting his weight on the door, and the defendants are not liable for the consequences entailed by his

act.

MONTAGUE SMITH, J.-I am of the same opinion. I think that the plaintiff's injury did not naturally or legitimately flow from

(3) 38 Law J. Rep. (N s.) Exch. 67.

the defendants' negligence. I assume that there was some negligence on the part of the defendants, either in there not being a proper lock on the door, or in their officers not shutting the door, the first of which rather appears to have been the case; but, this being so, it seems that, the door having flown open several times and been closed by the plaintiff several times, it again flew open, and that in the attempt to close it again the accident happened. Now when the plaintiff got up to shut the door he was in a position of safety, and it is not even said that he was suffering inconvenience from draught, and there was no evidence for the jury that he was in peril from the door being open, so he voluntarily chose to shut the door, and in doing so did not hold on by the carriage, but put his left arm out to pull the door to, and whilst using his right in shutting it threw his weight on the door, an act which was obviously dangerous, and therefore to remedy an inconvenience he voluntarily put himself in peril. I agree to the proposition that if the neglect of the defendants puts a passenger in a position of alternative danger, so that there is danger if he remains still and also danger if he attempts to avoid it, and if, in so attempting to avoid it, an injury occurs to him, such injury flows from the negligence of the defendants, but if this be not so, and he is only subjected to inconvenience and voluntarily runs into peril to remedy it, and receives injury, such injury does not arise from the negligence of the defendants. It is not necessary to lay this down as a general rule, for I by no means say that if there be great inconvenience and little peril it may not be reasonable in some cases to run the risk; but here, there being only inconvenience, and that inconvenience nothing like the peril incurred, the plaintiff takes a dangerous step, and therefore the consequences must be borne by himself. The rule will be found well illustrated and clearly put by Lord Ellenborough, in Jones v. Boyce (4), where the horses of the defendant's coach ran away in consequence of the breaking of a defective rein, and the plaintiff, a passenger, jumped off the coach and was injured; that learned Judge there

(4) 1 Stark. 493.

says, "to enable the plaintiff to sustain the action it is not necessary that he should have been thrown off the coach; it is sufficient if he was placed by the misconduct of the defendant in such a situation as obliged him to adopt the alternative of a dangerous leap or to remain in certain peril; if that position was occasioned by the default of the defendant the action may be supported"; and, again, “If I place a man in such a situation that he must adopt a perilous alternative I am responsible for the consequences" In the present case there was no evidence for the jury that the plaintiff was in any such position as justified him in incurring the peril he incurred. Many cases may be put where inconvenience will arise from the negligence of the defendants which would not justify the danger incurred by the passenger, e. g., suppose a train stops at the station where the passenger desires to alight, that the door is not opened and that the train is in motion again, if the passenger opens the door and jumps out, it seems to me that it is his own voluntary act, that it is not necessary, and that he must take the consequences, otherwise a greater liability would be thrown on a railway company than they can fairly be said to undertake by their contract. The loss which the passenger will incur by being taken on he can recover as damages, and he is not to take the matter into his own hands and adopt a perilous remedy, and then put the damages thereby caused on the company. For these reasons, I am of opinion that in this case the plaintiff's injury does not flow naturally from the contract between the parties and the defendants' negligence in its performance, and I therefore think that this rule should be made absolute.

BRETT, J.-I am not prepared to differ from the rest of the Court, and, on the whole, I now think there was no proper case for the jury, though when I reserved the point I certainly thought that there was a proper case for them, and that they were justified in the conclusion at which they arrived. I think that the immediate result of the defendants' negligence caused no peril to the plaintiff, and that if he had done nothing no injury would have ensued; but I think that he was subjected to consider

able inconvenience by the neglect of the defendants. Now it has been said, that no amount of inconvenience, if there be no peril, will justify a passenger in running any risk to avoid it, and it has been said that he must be in a position of alternative peril. I confess I am not prepared to go so far, for it may well be that, if the inconvenience be so great that it is reasonable to get rid of it by an effort which is not unreasonable and not obviously dangerous, a company may be liable; but, though I think a jury might be justified in saying that there was no obvious danger in the attempt, and no carelessness in the manner of carrying it out, yet I think, as the plaintiff was in no peril here, and the inconvenience not so great as to make it reasonable to attempt to get rid of it by the mode adopted, he is not entitled to succeed in this action. As regards the inconvenience: it was July; there was no evidence of bad weather; and it was but a short distance to the next station; and therefore, though there was inconvenience, it was not great. And, as respects the plaintiff's act, though the jury might say the danger was not obvious, one cannot say that it was not dangerous in itself; indeed, the result shews it was. As, then, there was no peril to the plaintiff from the door being open, and no such inconvenience as to justify the plaintiff incurring the peril he did, and, as therefore he did a negligent act which contributed to the accident, I am of opinion that the case is not within the principle that the injury must be caused solely by the default of the defendant, and the plaintiff not contribute to it by his own negligence, and I therefore think now that there was no case to go to the jury.

Attorneys-Johnson & Weatheralls, for plaintiff; Clarke, Woodcock & Ryland, agents for T. A. & J. Grundy & Co.. Manchester, for defendants.