J. T. Tinsley and another v. Carey, Reese & Co., 26 Tex. 350

Wheeler, C. J. The principal questions arising upon the merits of this case were decided on a former appeal, (Carey v. Tinsley, 22 Tex., 383.) After the case was remanded, the plaintiffs amended their petition, alleging that the assignment by Lovett of his judgment against Pennell was in fraud of the creditors of the former. This question was submitted by the court to the jury, and decided by them adversely to the plaintiff.

It is now insisted that the assignment was a contrivance to preventthe sureties of Lovett from receiving the benefit of that judgment in satisfaction of the judgment of Carey, Reese & Co., against Lovett and his sureties, and to enforce payment of the latter judgment out of the sureties, Lovett being insolvent, and so was a fraud upon the sureties, the plaintiffs in this case. But this was not the ground of assault made upon the assignment by the plaintiffs’ pleading.

It was not averred that the assignmentwas in fraud of the plaintiffs or sureties of Lovett, nor was the court asked to instruct the jury directly upon that aspect of the case. The charge of the court submitted the question made by the pleadings; and under the pleadings there Was no error in refusing the instructions asked by the plaintiffs. The question was one which it was peculiarly the province of the jury to decide.

If the assignment was made bona fide in discharge of a pre-existing debt, and not with a view to prevent the plaintiffs from obtaining the benefit of the proceeds of the judgment in satisfaction of the judgment in which they' were Sureties^if it ivas not made in fraud of the plaintiffs as the sureties of Lovett in that judgment—-it is not perceived that it would ■have the effect to release them from liability on the judgment. The plaintiffs objected to the reading of the deposition of the witness, Bouldin, upon the ground that the questions propounded ■the witness were leading.

The court very properly excluded the answer to the 6th interrogatory, but overruled the objection as to the others. A part of the 3d and 5th questions propounded to the witness were obnoxious to the same objection. The admission, of the answer to the 5th -is not material, as it simply states that the question had been ansAvered. But the answer to the latter part of the 3d is material, and in the very terms suggested by the interrogatory. We think it was error to admit it.

It is not the particular form of expression, as “ did or did not,” by which a question is introduced, which necessarily determines whether the question is leading, but whether it is so framed as to suggest to "the witness the answer desired. If it is, and is touching a matter affecting the substance of the issue, and not merely designed to ■lead the mind of the witness to the material subject matter on which he is to speak, it is a leading question.

Such a question, unless under particular circumstances which appeal to the discretion of the court, and which do not appear in this case, a party is not at liberty to put to his own witness. Such was "the question put to the witness in this dase. < Because the court erred in overruling' the objection to the answer of the Avitness, the judgment is reversed and the cause remanded. Reversed and remanded.