Those assignments of error which question the manner in which the papers in the cause were filed in the *306district court, and the delay in getting the case before that court, do not call for consideration and determination. After the cause was transferred to and filed in the district court, appellants appeared and demanded a jury, and agreed that the cause might be set down for trial on a day named.
Having appeared and recognized it as a pending cause, appellants could not afterwards be heard in limine, to question the manner in which the case came into court.
There was no error in the ruling of the court on the objection made to certain interrogatories on the ground that they were leading. It is now settled that such objections go to the manner and form of taking, and the objection must be made in writing and notice given as prescribed by statute. Lee v. Stowe, 57 Tex., 449; Buford v. Bostick, 58 Tex., 66; Mills v. Herndon, 60 Tex., 358.
ETor did the court err in refusing to admit the affidavit made by the witness Heiling in 1879, which was offered for the purpose of contradicting his evidence embodied in depositions taken in 1882. This was an ex parte affidavit, to which his attention was not directed by appellants in the cross-interrogatories or otherwise. Under what circumstances and for what purpose the affidavit was made does not appear. As disclosed by the record, Heiling has had no opportunity to explain the matter, and until such opportunity is afforded the affidavit would not be admissible for the purpose of impeaching the witness by contradicting his evidence. 1 Wharton’s Evidence, § 555.
By reference to the conclusions found by the court it will be seen that the judgment is based solely upon the ground that the two instruments, the original and supplemental deeds of trust, are void upon their face. It would seem that the court did not pass upon the evidence upon the contested issue as to whether Rice, the trustee, did or not take and retain possession of the merchandise in pursuance of the power conferred upon him by the supplemental deed. The court having found at the outset that the instruments were void upon their face, this precluded any further inquiry as to the facts. So that if the court erred in this conclusion, a reversal of the judgment and remanding of the cause would seem to necessarily follow; for the evidence upon that issue is conflicting, and appellants would have the right to have that evidence passed upon in the court below.
Admitting that the attempt to create a lien on merchandise added to the stock after the execution of the instruments is inoperative, that is, cannot be sustained, yet that does not affect the other pro*307visions contained in these instruments, provided they are in other respects valid. Scott v. Alford, 53 Tex., 95.
The deed of trust was given to secure an indebtedness then not matured or due, and, as limited by the supplemental instrument, the trustee was authorized to take immediate possession and sell the merchandise at private sale, and apply the proceeds to the secured indebtedness. When tested by the principles announced in the well considered case of Scott v. Alford, supra, it would seem that these provisions in the deed, as modified by the supplemental instrument, must be considered as valid and binding. And as these are not affected by the stipulation seeking to create a lien upon after-acquired merchandise, if, in fact, possession by the trustee, either in person or by agent, followed the execution of the deeds, then the property would not have been subject to the writ, so as to affect that possession, unless appellees first paid or tendered the amount of the secured indebtedness to appellants. R. S., art. 2290.
Here the material issue was as to the possession of the merchandise at the time of the levy. Appellees claim that the goods were in the possession of Heiling, while the appellants claim that Bice was in the actual bona fide possession, and that Heiling was selling the merchandise as his agent. Upon that issue evidence was adduced by both parties; in short, there was a well defined conflict in the evidence adduced to that issue. And, as before remarked, it seems that it was not passed upon in the court below.
Our conclusion is that the court erred as indicated, and that the judgment ought to be reversed and the cause remanded.
Reversed and Remanded.
[Opinion adopted February 13, 1885.]