refusal to grant the application is the proper subject of excep tions. Van Deusen v. Van Slyck, 15 Johns. 223; Bates v. Conkling, 10 Wend. 389."

While the declaration in this instance is not as clear as it might have been, we do not think that it charges alone concurrent negligence, and is not therefore subject to the rule that where a declaration charges that an injury resulted from the concurrent negligence of two defendants, and the jury finds. that it was caused by the negligence of but one, there is a fatal variance. Wiest v. Electric Traction Co. (Weist v. Philadelphia) 200 Pa. 148, 58 L.R.A. 666, 49 Atl. 891; Little Schuylkill Nav. R. & Coal Co. v. Richards, 57 Pa. 142, 98 Am. Dec. 209; Cleveland, C. C. & St. L. R. Co. v. Eggmann, 71 Ill. App. 42.

It will be observed that the declaration does not charge joint, concurrent, and disseverable acts of negligence, but that it charges each defendant with negligence independent of the negligent acts charged against the other. The declaration is so worded as to admit of a verdict against either or both of the defendants.

We think that, while it is a matter largely of discretion in the trial court, consideration should be given, before directing a verdict at the close of the evidence offered by plaintiff, to the probable effect upon the remaining codefendants. If the action. is one ex contractu, it is clear that the course here pursued might operate to enlarge the liability of the remaining defendants by depriving them of the right to enforce contribution in the event of a judgment against all. On the other hand, no reason is apparent for applying this principle to the case at bar. The action is ex delicto, and the defendants, had a joint judgment been rendered against them, would have been in the situation of joint tort feasors, with no right of action for contribution against each other. It is difficult to understand how appellant can be injured by the ruling. Its liability has not been increased. The jury was carefully instructed that before they could find against appellant, they should find that its negligence caused the accident, irrespective of whether the coach company was negligent or not. Since there was no contributing

negligence on the part of appellee, she was entitled to recover upon showing the fact that the accident was caused by the negligence of both or either of the defendants. She had the option of suing both or either of them, and had she elected to sue one, she could not have been compelled to make the other a defendant. The negligence of the one furnished no defense against the negligence of the other. They were as completely independent of each other as they would have been had they been defendants in separate suits.

Great caution should be exercised by a trial court before directing a separate verdict for one of several codefendants, and it ought never to be granted unless it clearly appears that there is no evidence to affect the party in whose favor it is made. Brown v. Howard, 14 Johns. 119.

We are not unmindful of the common-law rule that a jury by their verdict must find upon all the issues made by the pleadings. But we understand this rule to apply more particularly to verdicts that are either not responsive to the pleadings, or fail to find upon all the issues, or where the action is ex contractu against two or more joint defendants. Patterson v. United States, 2 Wheat. 221, 4 L. ed. 224. We are also aware that in some of the States, it has been held that when issue is joined upon the separate pleas of several defendants, the verdict must dispose of all the parties to the suit. Gulf, C. & S. F. R. Co. v. Renfro, Tex. Civ. App., 69 S. W. 648; Jenkins v. Parkhill, 25 Ind. 473. But even in these instances, we find no sound reason urged against the court's directing a verdict in tort in favor of a codefendant at the termination of the plaintiff's evidence, when it is clearly apparent that no injury can thereby be inflicted upon the remaining codefendant.

The judgment is affirmed, with costs, and it is so ordered.

Affirmed.

Statement of the Case.

[37 App.

MARCHE v. JOHNSON.

FRAUDULENT TRANSFERS; DEEDS OF TRUST; QUESTIONS OF FACT.

1. Where insolvent traders, to secure a debt due the wife of one of them, give and record a chattel deed of trust on their store fixtures, license, lease, and other stock in trade on their premises, and to be placed thereon, reserving the right to retain possession until default, and the debt mentioned in the deed in trust is greater than that actually owed, and the grantors thereafter sell part of the stock in trade, but do not apply the proceeds of sale to the reduction of the debt or to the payment of their other creditors,-the deed of trust is not fraudulent as matter of law, but the question as to whether it is a fraud upon creditors is one of fact for the jury. (Citing sec. 1120, D. C. Code [31 Stat. at L. 1368, chap. 854], providing that, in fraudulent conveyances, "the question of fraudulent intent shall be deemed a question of fact, and not of law.")

2. Sec. 1120, D. C. Code, providing that the question of intent in fraudulent conveyances shall be deemed a question of fact, and not of law, does not deprive the courts of the right to declare an instrument to be fraudulent in every case that may come before them.

No. 2252. Submitted February 10, 1911. Decided April 3, 1911.

HEARING on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, on verdict, on an issue made by a claim of title to property seized under a writ of attachment.

Affirmed.

The COURT in the opinion stated the facts as follows:

M. Marche & Company began an action in the municipal court to recover a debt of McDonald & Stone, and sued out a writ of attachment that was levied upon certain goods and chattels in a barroom and restaurant conducted by the defend

ants.

The goods were sold, and the sum realized therefrom ($106.35) was claimed by Hayden Johnson and Thomas H.

Patterson, trustees, in a claim proceeding authorized by the Code. Claimants offered in evidence a chattel mortgage executed by McDonald & Stone on June 30th, 1909, to said trustees, to secure the payment of twenty-five notes for $100 each, payable to Alida V. Stone; the first, three months after date, and one each month thereafter. The instrument conveyed all the furniture and fixtures in said restaurant and barroom, the barroom license, the lease of the building, and all stock in trade, including wines, liquors, brandies, cordials, etc., now located upon said premises or subsequently to be placed therein by said firm. The trust is upon the following

terms:

"In trust to suffer and permit the parties of the first part to retain possession of the said goods and chattels and personal property until the same shall and may be required, as hereinafter provided. And upon this further trust, upon default being made in the payment of said notes or either of them, or of any interest thereon when due, or any proper cost, charge, or expense in and about the same, then and at any time thereafter to take immediate possession of said goods and chattels and personal property, wheresoever the same may be found, and to sell the same at public auction upon such terms and after such public notice as the said parties of the second part, or the survivor of them, acting in the execution of this trust, shall deem advantageous and proper; and of the proceeds of sale or sales, first, to pay all proper costs, charges, and expenses, including a commission of 5 percentum on amount of said sale to said trustees for services; second, to pay whatever then remains unpaid of said notes, whether the same be due or not, and thereafter to pay the surplus, if any, to whomsoever shall be lawfully entitled to the same. And upon this further trust, at any time hereafter, whether the said note shall be due or not, upon the security hereby given being in any wise endangered in the opinion of the said parties of the second part, or the survivor of them, by the removal of said goods and chattels, and personal property, and any of them, without the written consent of the said party of the second part or the

Statement of the Case.

[37 App. survivor of them, or by the nonpayment of the rent of the premises where said goods and chattels may be placed, stored, or deposited, or by the rendering of a judgment or decree for the payment of money against said parties of the first part, or if said parties of the first part shall not keep the same insured in some good and reliable company against loss by fire to the extent of dollars and assign the same to the use of said parties of the second part, or the survivor of them, for the more effectual securing of the payment of said indebtedness, or if the same shall become endangered in any other manner in the opinion of the said parties of the second part, or the survivor of them, then and thereafter, upon the written order of the holders of said notes, or either of them, to take possession of said goods and chattels and personal property, and sell the same, and dispose of the proceeds thereof, in the manner herein before provided, as though default had been made in the payment of said notes."

The instrument was recorded July 8th, 1909.

John W. Stone, on behalf of the claimants, testified as follows:

That he was a member of the firm of Stone & McDonald, whose goods and chattels, as herein before set forth, had been attached by the defendants herein; that he was the person who, with Thomas A. McDonald, executed the indenture or deed of trust hereinbefore set forth unto Hayden Johnson and Thomas H. Patterson, to secure one Alida V. Stone; that the said Alida V. Stone is his wife; that the said firm never received the full sum of $2,500 recited in the said deed of trust to have been paid in hand by the said Alida V. Stone; that the sum of $1,100 had been received from Alida V. Stone by the firm of Stone & McDonald, and that the said Alida V. Stone promised verbally to put up or advance the remaining sum of $1,400 to the said firm at some future date; that the goods attached were purchased and in the possession of the firm at the time the deed was executed; that at the time the attachments were made by the defendants herein, the place of business of said firm was closed up; that there had been a partnership